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Exhibit 99.2
SPANISH BROADCASTING SYSTEM, INC.
9 5/8% SENIOR SUBORDINATED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
June 8, 2001
Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Spanish Broadcasting System, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell (the "Private Placement") to Xxxxxx
Brothers Inc. (the "Initial Purchaser") upon terms set forth in a purchase
agreement dated as of May [24], 2001 (the "Purchase Agreement") among the
Company and the Initial Purchaser, $100,000,000 of its 9 5/8% Senior
Subordinated Notes due 2009 (the "Private Notes"). As an inducement to you to
enter into the Purchase Agreement and purchase the Private Notes and in
satisfaction of a condition to your obligations under the Purchase Agreement,
the Company agrees with you for the benefit of the holders from time to time of
the Private Notes (including the Initial Purchaser), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of
this definition, control of a person means the power, direct or
indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Damages Payment Date" means, with respect to the Private Notes,
each date on which interest is paid in accordance with the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"Exchange Holder" means the Holders and the Original Holders.
"Exchange Notes" means securities issued by the Company,
identical in all material respects to the Notes to be issued
under the Indenture.
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"Exchange Offer" means the proposed offer to the Exchange
Holders to issue and deliver to such Exchange Holders, in
exchange for the Notes, a like aggregate principal amount of
Exchange Notes.
"Exchange Offer Registration Period" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) 90
days after effectiveness of the Exchange Offer Registration
Statement, exclusive of any period during which any stop order
shall be in effect suspending the effectiveness of the Exchange
Offer Registration Statement; provided, however, that in the
event that all resales of Exchange Notes (including, subject to
the time periods set forth herein, any resales by Exchanging
Dealers) covered by such Exchange Offer Registration Statement
have been made, the Exchange Offer Registration Statement need
not remain continuously effective for the period set forth in
clause (B) above.
"Exchange Offer Registration Statement" means a Registration
Statement of the Company on an appropriate form under the
Securities Act with respect to the Exchange Offer, all
amendments and supplements to such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Exchange Holder (which may include
the Initial Purchaser) that is a broker-dealer, electing to
exchange Notes acquired for its own account as a result of
market-making activities or other trading activities for
Exchange Notes.
"Holder" means the holders from time to time of the Initial
Notes and/or the Exchange Notes received in exchange for the
Initial Notes.
"Indenture" means the Indenture, dated as of June [ ], 2001,
between the Company and The Bank of New York, as trustee,
pursuant to which the Private Notes and the Exchange Notes are
to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
"Private Notes" means the 9 5/8% Senior Subordinated Notes due
2009, of the same series under the Indenture as the Exchange
Notes, for so long as such securities constitute Transfer
Restricted Securities.
"Private Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Losses" has the meaning set forth in Section 6(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Notes issued pursuant to a
Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer
an underwritten offering under a Shelf Registration Statement.
"Notes" means Private Notes and Original Notes.
"Offering Memorandum" has the meaning set forth in the Purchase
Agreement.
"Original Holder" means the holders of the Original Notes.
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"Original Notes" means the 9 5/8% Senior Subordinated Notes Due
2009 issued by the Company on November ___, 1999.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or Exchange Notes covered
by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective
amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registration Default" has the meaning set forth in Section 5(b)
hereof.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the
provisions of this Agreement, amendments and supplements to such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto, and all material incorporated by reference
therein.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3
hereof, which covers some or all of the Private Notes or
Exchange Notes, as applicable, on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Target Effectiveness Date" has the meaning set forth in Section
5(b) hereof.
"Transfer Restricted Securities" means each Note until: (i) the
date on which such Note has been exchanged by a Person other
than a broker-dealer for an Exchange Note in the Exchange Offer;
(ii) following the exchange by a broker-dealer in the Exchange
Offer of a Note for an Exchange Note, the date on which such
Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration
Statement; (iii) the date on which such Note has been
effectively registered under the Securities Act and disposed of
in accordance with the Shelf Registration Statement; or (iv) the
date on which such Note is distributed to the public pursuant to
Rule 144 under the Securities Act.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means United States Trust Company of New York and any
successors thereto.
"Underwriter" means any underwriter of Notes or Exchange Notes
in connection with an offering thereof under a Shelf
Registration Statement.
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"Underwritten Registration" or "Underwritten Offering" means a
registration in which the Notes or Exchange Notes of the Company
are sold to an underwriter for reoffering to the public.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
Private Exchange.
(a) The Company shall prepare and file with the Commission
the Exchange Offer Registration Statement with respect to the Exchange
Offer on or before the 90th calendar day after the Closing Date. The
Company shall use its best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act
on or prior to the 150th calendar day following the Closing Date and
remain effective until the closing of the Exchange Offer and (ii) to
consummate the Exchange Offer on or prior to the 180th calendar day
following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each
Exchange Holder electing to exchange Notes for Exchange Notes (assuming
that such Exchange Holder (x) is not an "affiliate" of the Company
within the meaning of the Securities Act, (y) is not a broker-dealer
that acquired the Notes in a transaction other than as a part of its
market- making or other trading activities and (z) if such Exchange
Holder is not a broker-dealer, acquires the Exchange Notes in the
ordinary course of such Exchange Holder's business, is not participating
in the distribution of the Exchange Notes and has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Exchange Offer, the Company shall
mail to each Exchange Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents, stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant
to this Agreement and that all Notes validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Notes not tendered will remain
outstanding and continue to accrue interest, but will not retain
any rights under this Agreement;
(iv) that Exchange Holders electing to have Notes
exchanged pursuant to the Exchange Offer will be required to
surrender such Notes, together with the enclosed letters of
transmittal, to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the
notice prior to the close of business on the last day of
acceptance for exchange; and
(v) that Exchange Holders will be entitled to
withdraw their election, not later than the close of business on
the last day of acceptance for exchange, by sending to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth
the name of such Exchange Holder, the aggregate principal amount
of Notes delivered for exchange and a statement that such
Exchange Holder is withdrawing his election to have such Notes
exchanged; and shall keep the Exchange Offer open for acceptance
for not less than 30 days (or longer if required by applicable
law) after the
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date notice thereof is mailed to the Exchange Holders; utilize
the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York; and
comply in all respects with all applicable laws relating to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Exchange Holder Exchange Notes equal in
principal amount to the Notes of such Holder so accepted for
exchange.
(e) The Initial Purchaser and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Exchanging
Dealer pursuant to the Exchange Offer in exchange for Notes acquired for
its own account as a result of market-making activities or other trading
activities. Accordingly, the Company shall:
(i) include the information set forth in (A) Annex A
hereto on the cover of the Exchange Offer Registration
Statement, (B) in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details
of the Exchange Offer, (C) in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus forming a part
of the Exchange Offer Registration Statement, and (D) in Annex D
hereto in the letter of transmittal delivered pursuant to the
Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period for
delivery of the prospectus included therein by Exchanging
Dealers in connection with sales of Exchange Notes received
pursuant to the Exchange Offer, as contemplated by Section 4(h)
below; provided, however, that the Company shall not be required
to maintain the effectiveness of the Exchange Offer Registration
Statement for more than 30 days following the consummation of
the Exchange Offer unless the Company has been notified in
writing on or prior to the 30th day following the consummation
of the Exchange Offer by one or more Exchanging Dealers that
such Exchange Holder has received Exchange Notes as to which it
will be required to deliver a prospectus upon resale.
(f) In the event that an Initial Purchaser determines that
it is not eligible to participate in the Exchange Offer with respect to
the exchange of Notes constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial
Purchaser, the Company shall issue and deliver to the Initial Purchaser,
or to the party purchasing Private Notes registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such
Private Notes, a like principal amount of Exchange Notes. The Company
shall use its reasonable best efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number for such Exchange Notes as for Exchange
Notes issued pursuant to the Exchange Offer.
(g) The Company shall use its best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the
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Exchange Act and other applicable laws and regulations in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that (i) the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the
Commission, (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might
materially impair the ability of the Company to proceed with the
Exchange Offer, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Company and
(iii) all governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation of the
Exchange Offer. The Company shall inform the Initial Purchaser, upon its
request, of the names and addresses of the Exchange Holders to whom the
Exchange Offer is made, and the Initial Purchaser shall have the right,
subject to applicable law, to contact such Exchange Holders and
otherwise facilitate the tender of Notes in the Exchange Offer.
(h) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate 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 Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Exchange Holder hereby acknowledges and agrees that any
broker-dealer and any such Exchange Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated
in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in
the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection
with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Private Notes acquired by
such Holder directly from the Company.
3. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) the Company is
not required to file the Exchange Offer Registration Statement for any reason
other than those specified in clause (i) above, or (iii) with respect to any
Holder of Transfer Restricted Securities, such Holder notifies the Company prior
to the 20th day following the consummation of the Exchange Offer that (A) such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) such Holder is an Exchanging Dealer and holds Private Notes acquired
directly from the Company or one of its affiliates (it being understood that,
for purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act in connection with sales of Exchange
Notes acquired in exchange for such Notes shall result in such Exchange Notes
being not "freely tradeable" and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of Exchange Notes acquired in the
Exchange Offer in
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exchange for Notes acquired as a result of market-making activities or other
trading activities shall not result in such Exchange Notes being not "freely
tradeable"), the following provisions shall apply:
(a) The Company shall, as promptly as practicable (but in no
event later than the 90th calendar day after the obligation to file a
Shelf Registration Statement under this Section 3 arises), file with the
Commission a Shelf Registration Statement relating to the offer and sale
of the Private Notes or the Exchange Notes, as applicable, by the
Holders from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Securities Act, provided that, with
respect to Exchange Notes received by the Initial Purchaser in exchange
for Private Notes constituting any portion of an unsold allotment, the
Company may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation
S-K Items 507 and/or 508, as applicable, in satisfaction of its
obligations under this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred
to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(b) The Company shall use its best efforts to cause the
Shelf Registration Statement to be declared effective under the
Securities Act on or prior to the 180th calendar day after the
obligation to file a Shelf Registration Statement under this Section 3
arises and to keep such Shelf Registration Statement continuously
effective in order to permit the Prospectus contained therein to be
usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Private Notes or
Exchange Notes, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
(in any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts
to keep the Shelf Registration Statement effective during the requisite
period if the Company voluntarily takes any action that would result in
Holders of Notes or Exchange Notes covered thereby not being able to
offer and sell such Notes or Exchange Notes during that period, unless
(i) such action is required by applicable law, (ii) the Company complies
with this Agreement or (iii) such action is taken by the Company or any
Affiliates in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(m) hereof, if
applicable.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall, within a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchaser and
its counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel, upon their request) and make such
representatives of the Company as shall be reasonably requested by the
Initial Purchaser or its counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel) available
for discussion of such document, and shall not at any time file or make
any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus
or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Initial Purchaser
and its counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial
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Purchaser or its counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object, except for any
amendment or supplement or document (a copy of which has been previously
furnished to the Initial Purchaser and its counsel (and, in the case of
a Shelf Registration Statement, the Majority Holders and their counsel,
upon their request)) which counsel to the Company shall advise the
Company, in the form of a written opinion, is required in order to
comply with applicable law; the Initial Purchaser agree that, if it
receives timely notice and drafts under this clause (a), it will not
take actions or make objections pursuant to this clause (a) such that
the Company is unable to comply with its obligations under Section 2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus contained therein and any amendment
or supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchaser
and, in the case of a Shelf Registration Statement, the Holders of
Private Notes or Exchange Notes covered thereby, and, if requested by
the Initial Purchaser or any such Holder, confirm such advice in
writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange
Offer Registration Period, as applicable, the Company shall advise the
Initial Purchaser and, in the case of a Shelf Registration Statement,
the Holders of Private Notes or Exchange Notes covered thereby, and, in
the case of an Exchange Offer Registration Statement, any Exchanging
Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the
Initial Purchaser or any Exchange Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes or Exchange Notes included therein for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration Statement
or the Prospectus does not include an untrue statement of a
material fact or
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omit to state a material fact necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Private
Notes covered by any Shelf Registration Statement that so requests,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits
thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Private Notes or Exchange Notes covered by any
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Private Notes or Exchange Notes in connection with
the offering and sale of the Private Notes or Exchange Notes covered by
the Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated
by reference therein and, if the Exchanging Dealer so requests in
writing, all exhibits thereto.
(h) The Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging
Dealer in connection with a sale of Exchange Notes received by it
pursuant to the Exchange Offer; and the Company consents to the use of
the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer, as provided in Section 2(e) above.
(i) Each Exchange Holder of Notes and each Exchange Dealer
agrees by its acquisition of such Notes to be sold by such Exchange
Dealer that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (c)(2)(i),
(c)(2)(ii), or (c)(2)(iii) of this Section 4, such Exchange Holder will
forthwith discontinue disposition of such Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by
such Exchange Holder or Exchange Dealer, as the case may be, until such
Exchange Holder's or Exchange Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(l) hereof,
or until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Company shall
give any such notice, the Exchange Offer Registration Period shall be
extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when
each seller of the Exchange Notes covered by such Registration Statement
or Exchange Notes to be sold by such Exchange Dealer, as the case may
be, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 4(l) hereof or (y) the advice in
writing.
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(j) Prior to the Exchange Offer or any other offering of
Notes pursuant to any Registration Statement, the Company shall register
or qualify or cooperate with the Exchange Holders of Notes included
therein and their respective counsel in connection with the registration
or qualification of such Notes for offer and sale under the securities
or blue sky laws of such states as any such Exchange Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such states of the Notes
covered by such Registration Statement; provided, however, that the
Company will not be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or to subject itself
to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(k) The Company shall issue, upon the request of any Holder
of Private Notes covered by the Shelf Registration Statement, Exchange
Notes, having an aggregate principal amount equal to the aggregate
principal amount of Private Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange
Notes to be registered in the name of the purchaser(s) of such Exchange
Notes, as the case may be; in return, the Private Notes held by such
Holder shall be surrendered to the Company for cancellation.
(l) The Company shall cooperate with the Exchange Holders to
facilitate the timely preparation and delivery of certificates
representing Notes to be sold pursuant to any Registration Statement
free of any restrictive legends and in denominations of $1,000 or an
integral multiple thereof and registered in such names as Exchange
Holders may request prior to sales of Notes pursuant to such
Registration Statement.
(m) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) of this Section 4, the Company shall promptly
prepare and file a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any
other required document so that, as thereafter delivered to purchasers
of the Notes included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and, in the case of a Shelf
Registration Statement, notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event. Notwithstanding the foregoing, the Company shall not be required
to amend or supplement a Shelf Registration Statement, any related
Prospectus or any document incorporated therein by reference, for a
period not to exceed an aggregate of 90 days in any calendar year, if
the Company determines in its good faith judgment that the disclosure of
such event at such time would have a material adverse effect on the
business, operations, or prospects of the Company or the disclosure
otherwise related to a pending material business transaction that has
not yet been publicly disclosed.
(n) Not later than the effective date of any such
Registration Statement hereunder, the Company shall provide a CUSIP
number for the Notes registered under such Registration Statement, and
provide the Trustee with certificates for such Notes, in a form eligible
for deposit with The Depository Trust Company.
(o) The Company shall use its best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement meeting the requirements of Rule 158 under the Securities Act.
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(p) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Exchange
Holders of 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 Trust Indenture Act; and to 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.
(q) The Company may require each Holder of Private Notes or
Exchange Notes to be sold pursuant to any Shelf Registration Statement
to furnish to the Company such information regarding the Holder and the
distribution of such Private Notes as the Company may from time to time
reasonably require for inclusion in such Registration Statement.
(r) The Company shall, if requested, promptly incorporate in
a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters,
if any, and Majority Holders reasonably agree should be included
therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(s) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Private
Notes or Exchange Notes included therein, and in connection therewith,
if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
6.
(t) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the
Holders of Private Notes or Exchange Notes to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and any of its
subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations
and make such representatives of the Company as shall be
reasonably requested by the Initial Purchaser or Managing
Underwriters, if any, available for discussion of any such
Registration Statement; provided, however, that any non-public
information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the
public generally or through a third party without an
accompanying obligation of confidentiality other than as a
result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent;
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(iii) make such representations and warranties to the
Holders of Private Notes registered thereunder and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in similar underwritten offerings
and such other matters as may be reasonably requested by such
Holders and underwriters;
(v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriters, if any,
and use reasonable efforts to have such letter addressed to the
selling Holders of Private Notes registered thereunder (to the
extent consistent with Statement on Auditing Standards No. 72 of
the American Institute of Certified Public Accountants (AICPA)
("SAS 72")), in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
similar underwritten offerings, or if the provision of such
"cold comfort" letters is not permitted by SAS 72 or if
requested by the Initial Purchaser or its counsel in lieu of a
"cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 75 of the AICPA, covering
matters requested by the Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily delivered in similar
offerings, including those to evidence compliance with Section
4(m) and with any conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(t) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(u) The Company shall, in the case of a Shelf Registration,
use its best efforts to cause all Private Notes or Exchange Notes to be
listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if
requested by the Majority Holders, to the extent such Private Notes or
Exchange Notes satisfy applicable listing requirements.
5. Registration Expenses; Remedies.
(a) The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3
and 4 hereof, including without limitation: (i) all Commission, stock
exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters or Exchange Holders in connection with blue sky
qualification of any Notes), (iii) all expenses of any persons in
preparing or assisting in preparing, word processing, printing
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and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) the fees and
disbursements of the Trustee and its counsel, (v) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchaser)
and in the case of any Exchange Offer Registration Statement, the fees
and expenses of counsel to the Initial Purchaser acting in connection
therewith and (vi) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance
and compliance, but excluding fees and expenses of counsel to the
underwriters (other than fees and expenses set forth in clause (ii)
above) or the Exchange Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Notes by an Exchange Holder.
(b) In the event that the Company:
(i) fails to file the Exchange Offer Registration
Statement or Shelf Registration Statement, as the case may be,
on or before the date specified for either such filing;
(ii) either such registration statement is not
declared effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target
Date");
(iii) the Company fails to consummate the Exchange
Offer within 30 days of the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange
Offer Registration Statement is declared effective but
thereafter ceases to be effective or usable in connection with
the resales of Transfer Restricted Securities during the periods
specified in this Registration Rights Agreement (each such event
referred to in clauses (i) through (iv) above, a "Registration
Default"),
then the Company will pay liquidated damages ("Liquidated Damages"),
calculated on the following basis for such number of calendar days that
the Registration Default exists and is not cured, to each holder of
Private Notes or Exchange Notes, with respect to the first 90-day period
immediately following the occurrence of the first Registration Default
in an amount equal to $0.05 per week per $1,000 principal amount of
Private Notes or Exchange Notes held by that holder. The amount of the
Liquidated Damages will increase by an additional $0.05 per week per
$1,000 principal amount of Private Notes or Exchange Notes with respect
to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of Liquidated Damages for all
Registration Defaults of $0.50 per week per $1,000 principal amount of
Notes.
(c) The Company shall pay all accrued Liquidated Damages on
each Damages Payment Date to the holders entitled thereto by wire
transfer of immediately available funds and to holders of Certificate
Notes by wire transfer to the accounts specified by them or by mailing
checks to their registered addresses if no such accounts have been
specified.
(d) Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
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(e) Without limiting the remedies available to the Initial
Purchaser and the Exchange Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2
and 3 hereof may result in material irreparable injury to the Initial
Purchaser or the Exchange Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the
Initial Purchaser or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under
Sections 2 and 3 hereof.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the
Company agrees to indemnify and hold harmless each Exchange Holder of
Notes covered thereby (including the Initial Purchaser and, with respect
to any Prospectus delivery as contemplated by Sections 2(e) and 4(h)
hereof, each Exchanging Dealer) the directors, officers, employees and
agents of such Exchange Holder and each person who controls such
Exchange Holder within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in such Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage
or liability (or action in respect thereof); provided, however, that the
Company will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any such
indemnified party specifically for inclusion therein or any information
included therein pursuant to Section 4(r); provided further, however,
that the Company will not be liable in any case with respect to any
untrue statement or omission or alleged untrue statement or omission
made in any preliminary Prospectus or Prospectus, or in any amendment
thereof or supplement thereto to the extent that any such loss, claim,
damage or liability (or action in respect thereof) resulted from the
fact that any indemnified party sold 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 then amended or supplemented, if the Company
had previously complied with the provisions of Section 4(c)(2) and 4(f)
or 4(h) hereof and if the untrue statement contained in or omission from
such preliminary prospectus or Prospectus was corrected in the
Prospectus as then amended or supplemented. This indemnity agreement
will be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Private Notes registered
under a Shelf Registration Statement, its employees, officers, directors and
agents and each person who controls such underwriters on the same basis as that
of the indemnification of the Initial Purchaser and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(s)
hereof.
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(b) Each Exchange Holder of Notes covered by a Registration
Statement (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated by Sections 2(e) and 4(h) hereof,
each Exchanging Dealer) severally agrees to indemnify and hold harmless
(i) the Company, (ii) each of the directors of the Company, (iii) each
of the officers of the Company who signs such Registration Statement and
(iv) each Person who controls the Company within the meaning of either
the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Exchange Holder, but
only with respect to written information furnished to the Company by or
on behalf of such Exchange Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability that any such Exchange
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses, and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint
counsel (including local counsel) of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in
any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel (and local counsel) if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there are legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written
consent; provided, however, that such consent was not unreasonably
withheld.
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(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending the same) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Private
Placement and the Registration Statement that resulted in such Losses;
provided, however, that in no case shall the Initial Purchaser or any
subsequent Exchange Holder of any Note be responsible, in the aggregate,
for any amount in excess of the purchase discount or commission
applicable to such Note, or in the case of an Exchange Note, applicable
to the Note that was exchangeable into such Exchange Note, as set forth
on the cover page of the Offering Memorandum, nor shall any underwriter
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Notes purchased by such underwriter under
the Registration Statement that resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying
party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net
proceeds from the Private Placement (before deducting expenses) as set
forth on the cover page of the Offering Memorandum. Benefits received by
the Initial Purchaser shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Offering
Memorandum, and benefits received by any other Exchange Holders shall be
deemed to be equal to the value of receiving Notes registered under the
Securities Act. Benefits received by any underwriter shall be deemed to
be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the
Registration Statement that resulted in such Losses. Relative fault
shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
that did not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), 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. For
purposes of this Section 6, each person who controls an Exchange Holder
within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Exchange Holder shall
have the same rights to contribution as such Exchange Holder, and each
person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf
of any Exchange Holder or the Company or any of the officers, directors
or controlling persons referred to in Section 6 hereof, and will survive
the sale by a Holder of Notes covered by a Registration Statement.
7. Rule 144A. The Company hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer
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Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering; provided, that such investment bankers and
managers must be reasonably satisfactory to the Company.
10. Miscellaneous.
(a) No Inconsistent Agreement. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement that conflicts with the rights granted
to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Holders of at least a
majority of the then outstanding aggregate principal amount of Notes
(or, after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Notes); provided that, with respect to any
matter that directly or indirectly affects the rights of the Initial
Purchaser hereunder, the Company shall obtain the written consent of the
Initial Purchaser. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Exchange Holders whose Private Notes or Exchange Notes are being sold
pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Notes being sold rather
than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to an Exchange Holder, at the most current
address given by such Exchange Holder to the Company in
accordance with the provisions of this Section 10(c), which
address initially is, with respect to each Holder, the address
of such Holder maintained by the Trustee, with a copy in like
manner to Xxxxxx Brothers Inc.;
(ii) if to the Initial Purchaser, at Xxxxxx Brothers
Inc., Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: [ ], with a copy to Xxxxxxxx Chance Xxxxxx & Xxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxxxxx, Esq.; and
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(iii) if to the Company, Spanish Broadcasting System,
Inc., 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx, with a copy to Xxxx Xxxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Xxxxxxx X. Xxxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchaser, on the one hand, or the Company, on
the other, by notice to the other party or parties may designate additional or
different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company thereto, subsequent Exchange Holders of Notes
and Exchange Notes. The Company hereby agrees to extend the benefits of
this Agreement to any Exchange Holder of Notes and any such Exchange
Holder may specifically enforce the provisions of this Agreement as if
an original party hereto.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same Agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, Etc. Whenever the consent or
approval of Exchange Holders of a specified percentage of the aggregate
principal amount of Notes or Exchange Notes is required hereunder, Notes
or Exchange Notes held by the Company or its Affiliates (other than
subsequent Exchange Holders of Notes if such subsequent Exchange Holders
are deemed to be Affiliates solely by reason of their holdings of such
Notes) shall not be counted in determining whether such consent or
approval was given by the Exchange Holders of such required percentage.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP, Chief Financial
Officer and Secretary
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The foregoing Agreement is hereby
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxxx Xxxx
Title: MD
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ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
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ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
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ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes, it represents that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
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