ASCENT ENTERTAINMENT GROUP, INC.
$225,000,000
11 7/8% SENIOR SECURED DISCOUNT NOTES DUE 2004
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 22, 1997
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ascent Entertainment Group, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to the
Initial Purchaser, upon the terms set forth in a purchase agreement dated as
of December 17, 1997 (the "Purchase Agreement"), its 11f% Senior Secured
Discount Notes due 2004 (the "Senior Notes"). The Senior Notes will be
senior secured obligations of the Company, secured by a perfected first
priority pledge of the Company's shares of capital stock of its presently 57%
owned subsidiary, On Command Corporation. As an inducement to the Initial
Purchaser to enter into the Purchase Agreement and purchase the Senior 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 Senior Notes as shown on the note register (including the
Initial Purchaser) (each of the foregoing a "Holder" and together the
"Holders"), 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.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE SENIOR NOTES" means debt securities issued by the
Company, identical in all material respects to the Senior Notes (except that
(i) interest thereon shall accrue from the last date on which interest was
paid on the Senior Notes or, if no such interest has been paid, from December
22, 1997 and (ii) the interest rate step-up provisions and the transfer
restrictions pertaining to the Senior Notes will be eliminated in the
Exchange Senior Notes), to be issued under the Indenture.
"EXCHANGE OFFER" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the Senior Notes, a like
principal amount of Exchange Senior Notes.
"EXCHANGE OFFER REGISTRATION PERIOD" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) one year 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 Senior 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 Holder (which may include the Initial
Purchaser) that is a broker-dealer, electing to exchange Senior Notes
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Senior Notes.
"FINAL MEMORANDUM" has the meaning set forth in the Purchase
Agreement.
"HOLDER" has the meaning set forth in the preamble hereto.
"INDENTURE" means the indenture relating to the Senior Notes and
the Exchange Senior Notes, to be dated as of the Closing Date, between the
Company and The Bank of New York, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASER" has the meaning set forth in the Purchase
Agreement.
"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 Senior Notes registered under 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.
"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 Senior Notes
or the Exchange Senior 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 STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Senior Notes
or the Exchange Senior Notes 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.
"SENIOR NOTES" has the meaning set forth in the preamble hereto.
"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 Senior Notes or Exchange Senior 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.
"TRUSTEE" means the trustee with respect to the Senior Notes or
Exchange Senior Notes, as applicable, under the Indenture.
"UNDERWRITER" means any underwriter of Senior Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. EXCHANGE OFFER; RESALES OF EXCHANGE SENIOR NOTES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE.
(a) The Company shall prepare and, on or prior to the 45th
calendar day following the Closing Date, shall file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange Offer.
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 120th 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 150th 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 Holder electing to
exchange Senior Notes for Exchange Senior Notes (assuming that such 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 Senior Notes in a
transaction other than as a part of its market-making or other trading
activities and (z) if such Holder is not a broker-dealer, acquires the
Exchange Senior Notes in the ordinary course of such ▇▇▇▇▇▇'s business, is
not participating in the distribution of the Exchange Senior Notes and has no
arrangements or understandings with any person to participate in the
distribution of the Exchange Senior Notes) to resell such Exchange Senior
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 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 Senior Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Note not properly tendered will remain
outstanding
and continue to accrue interest, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Note exchanged pursuant to the
Exchange Offer will be required to surrender such Note, 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 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 Holder, the
principal amount of Senior Notes delivered for exchange and a statement that
such ▇▇▇▇▇▇ is withdrawing his election to have such Senior Notes exchanged;
and shall keep the Exchange Offer open for acceptance for not less than 30
days and not more than 45 days (or longer if required by applicable law)
after the date notice thereof is mailed to the 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 Senior Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Senior Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to
each Holder Exchange Senior Notes equal in principal amount to the Senior
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 Senior Notes received by such Exchanging Dealer
pursuant to the Exchange Offer in exchange for Senior 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 Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, 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 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 Senior 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 60
days following the consummation of the Exchange Offer unless the Company has
been notified in writing on or prior to the 60th day following the
consummation of the Exchange Offer by one or more Exchanging Dealers that
such Holder has received Exchange Senior Notes as to which it will be
required to deliver a prospectus upon resale.
(f) In the event that the Initial Purchaser determines that it is
not eligible to participate in the Exchange Offer with respect to the
exchange of Senior 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
Exchange Senior Notes registered under the Shelf Registration Statement from
the Initial Purchaser, in exchange for such Senior Notes, a like principal
amount of Exchange Senior Notes. The Company shall use its best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Senior Notes as for Exchange Senior 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 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 the Exchange
Offer does not violate applicable law or any applicable interpretation of the
staff of the Commission. The Company shall inform the Initial Purchaser of
the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchaser shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Senior Notes in
the Exchange Offer.
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) for
any reason other than those specified in clause (i) above, the Exchange Offer
is not consummated within 150 days of the Closing Date unless the Exchange
Offer has commenced, in which case, the Exchange Offer is not consummated
within 30 days after the date on which the Exchange Offer was commenced, or
(iv) the Initial Purchaser so requests with respect to Senior Notes held by
it following consummation of the Exchange Offer, or (v) any Holder (other
than the Initial
Purchaser) is not eligible to participate in the Exchange Offer or has
participated in the Exchange Offer and has received Exchange Senior Notes
that are not freely tradeable or (vi) in the case where the Initial Purchaser
participates in the Exchange Offer or acquires Exchange Senior Notes pursuant
to Section 2(f) hereof, the Initial Purchaser does not receive freely
tradeable Exchange Senior Notes in exchange for Senior Notes constituting any
portion of an unsold allotment (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
Senior Notes acquired in exchange for such Senior Notes shall result in such
Exchange Senior Notes being not "freely tradeable" and (y) the requirement
that an Exchanging Dealer deliver a Prospectus in connection with sales of
Exchange Senior Notes acquired in the Exchange Offer in exchange for Senior
Notes acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Senior Notes being not "freely
tradeable"), the following provisions shall apply:
(a) The Company shall, as promptly as practicable, and in any
event on or prior to 30 days after such filing obligation arises (and within
150 days after the date hereof), file with the Commission a Shelf
Registration Statement relating to the offer and sale of the Senior Notes or
the Exchange Senior 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 Senior Notes received by the
Initial Purchaser in exchange for Senior 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 45 days after filing such Shelf Registration Statement pursuant
to this Section 3 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 Senior Notes or Exchange Senior 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 it voluntarily takes any action that
would result in Holders of Senior Notes covered thereby not being able to
offer and sell such Senior Notes during that period, unless (i) such action
is required by
applicable law or (ii) such action is taken by the Company 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(k) 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) (i) The Company shall, prior to the filing of any such
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, 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) 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 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 their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchaser or its counsel (and, in the case of a Shelf Registration Statement,
the Holders or their counsel) shall reasonably 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 Holders and their counsel)) which counsel
to the Company and the Guarantors shall advise the Company, in the form of a
written legal opinion, is required in order to comply with applicable law;
and
(ii) prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
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), which document will be subject to the review and comment of the
Initial Purchaser and its counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) for a period of five business days
or such lesser number of days as may be reasonably necessary in the view of
the Company in order to comply with applicable law; and
the Initial Purchaser agrees 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 are unable to comply with
their 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;
(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, did not
include as of the date thereof 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 Senior Notes
covered thereby who have provided their address in writing, 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
Senior 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 such 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 Senior 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 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.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in this Section 4(c)(2)(iii) hereof, such Holder
will forthwith discontinue disposition of Senior Notes pursuant to a
Registration Statement until such ▇▇▇▇▇▇'s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(k) 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. If the Company shall give any such notice to suspend
the disposition of Senior Notes pursuant to a Registration Statement, the
Company shall extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such disposition. The
Company may give any such notice so long as there are no more than 30 days in
any 365 day period in which such suspensions are in effect.
The Holders of Senior Notes covered by a Shelf Registration
Statement who desire to do so may sell such Senior Notes in an underwritten
Offering. In any such underwritten offering, the Managing Underwriters will
be selected by the Majority Holders of the Senior Notes included in such
offering; PROVIDED that such Managing Underwriters shall be reasonably
acceptable to the Company.
(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 Senior Notes
covered by any Shelf Registration Statement, 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 (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Senior 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 for
delivery by such Holder in connection with resales of Senior Notes; and the
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Senior Notes in connection with the
offering and sale of the Senior 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 (including those incorporated by reference).
(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 Senior 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) Prior to the Exchange Offer or any other offering of Senior
Notes pursuant to any Registration Statement, the Company shall register or
qualify or cooperate with the Holders of Senior Notes included therein and
their respective counsel in connection with the registration or qualification
of, such Senior Notes for offer and sale under the securities or blue sky
laws of such states as any such 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 Senior 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.
(j) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Senior 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 Holders may request prior to sales of Senior
Notes pursuant to such Registration Statement.
(k) 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 Senior 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.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the Senior
Notes or Exchange Senior Notes, as the case may be, registered under such
Registration Statement, and provide the Trustee with printed certificates for
such Senior Notes or Exchange Senior Notes, in a form eligible for deposit
with The Depository Trust Company.
(m) 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
satisfying the provisions of Section 11(a) of the Securities Act.
(n) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
timely manner.
(o) The Company may require each Holder of Senior 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 Senior Notes as
the Company may from time to time reasonably require for inclusion in such
Registration Statement.
(p) 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.
(q) 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 Senior 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 with respect to all parties to be
indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders
of Senior 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
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 (provided that in such event the Holders shall provide
notice to the Company of such court proceeding in order to give the Company
an opportunity to request a protective order against such disclosure), 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;
(iii) make such representations and warranties to the Holders
of Senior 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
Senior 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 No. 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. 35 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(k) 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(r) 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.
(s) The Company shall, in the case of a Shelf Registration, use
its best efforts to cause all Senior 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 Senior Notes satisfy applicable listing requirements.
(t) The Company shall use its best efforts to cause the Exchange
Senior Notes or Senior Notes, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the 1933 Act).
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 Holders
in connection with blue sky qualification of any of the Exchange Senior Notes
or Senior Notes), (iii) all expenses of any persons in preparing or assisting
in preparing, word processing, printing 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) all
rating agency fees, if any, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the 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 reasonable fees and expenses of
counsel to the Initial Purchaser acting in connection therewith, PROVIDED,
HOWEVER, that the aggregate amount of fees and expenses of counsel
reimbursable under this clause (vii) shall not exceed $50,000, and (viii) 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 Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Senior Notes by a Holder.
(b) The Senior Notes provide that in the event that either (i) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 45th calendar day following the Closing Date or (ii) the
Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective on or prior to the 150th calendar day following the
Closing Date, the interest rate borne by the Senior Notes will be increased
by .50% per annum for the first 30 days following the 45-day period referred
to in clause (i) above or the first 90 days following the 150-day period
referred to in clause (ii) above. Such interest will be increased by an
additional .50% per annum at the beginning of each subsequent 30-day period
in the case of clause (i) above or 90-day period in the case of clause (ii)
above; PROVIDED, HOWEVER, that in no event will the interest rate borne by
the Senior Notes be increased by more than 1.5% per annum. Upon the filing
of the Exchange Offer Registration Statement, the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, the interest rate borne by the Senior Notes from the date of
such filing, consummation or effectiveness, as the case may be, will be
reduced to the original interest rate; PROVIDED, HOWEVER, that, if after such
reduction in interest rate, a different event specified in clause (i) or (ii)
above occurs, the interest rate may again be increased pursuant to the
foregoing provisions.
(c) Without limiting the remedies available to the Initial
Purchaser and the 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 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 Holder of Senior 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 Holder and each person who controls such 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 Holder specifically for inclusion therein; 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 Holder sold Senior Notes or Exchange Senior 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 in any
case where such delivery is required by the Securities Act, 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 or then
amended or supplemented. This indemnity agreement will be in addition to any
liability that the Company or any Guarantor may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Senior Notes registered
under a Shelf Registration Statement, their 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(q) hereof.
(b) Each Holder of Senior 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 Holder, but only with respect to written information furnished
to the Company by or on behalf of such 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 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 may be 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. 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. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(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 Initial Placement and the Registration Statement that resulted in such
Losses; PROVIDED, HOWEVER, that in no case shall the Initial Purchaser or any
subsequent Holder of any Note or Exchange Senior 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 Senior Note,
applicable to the Note that was exchangeable into such Exchange Senior Note,
as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Senior 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 sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth
on the cover page of the Final Memorandum and (y) the total amount of
additional interest that the Company was not required to pay as a result of
registering the Senior Notes covered by the Registration Statement that
resulted in such Losses. 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 Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Senior
Notes or Exchange Senior Notes, as applicable, 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
a Holder within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee and agent of such Holder shall have the
same rights to contribution as such Holder, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act,
and each officer 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 Holder or
the Company or any Guarantor or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a
Holder of Senior Notes covered by a Registration Statement.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has not as of the date
hereof entered into, nor shall 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 Senior Notes (or, after the consummation of any
Exchange Offer in accordance with Section 2 hereof, of Exchange Senior
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 Holders whose Senior 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 Senior 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 a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.;
(ii) if to the Initial Purchaser, at NationsBank ▇▇▇▇▇▇▇▇▇▇
Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Managing Director; and
(iii) if to the Company, c/o the Company at One ▇▇▇▇▇ Center, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Executive
Vice President, Chief Operating Officer and Chief Financial Officer.
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 Holders of Senior Notes and/or Exchange
Senior Notes. The Company hereby agrees to extend the benefits of this
Agreement to any Holder of Senior Notes and/or Exchange Senior Notes and any
such 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) SENIOR NOTES HELD BY THE COMPANY, ETC. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Senior Notes or Exchange Senior Notes is required hereunder, Senior Notes or
Exchange Senior Notes, as applicable, held by the Company or its Affiliates
(other than
subsequent Holders of Senior Notes or Exchange Senior Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Senior Notes or Exchange Senior Notes) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
ASCENT ENTERTAINMENT GROUP, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: -------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Business &
Legal Affairs
The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
ANNEX A
Each broker-dealer that receives Exchange Senior 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 Senior 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 Senior Notes received in
exchange for Senior Notes where such Senior 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."
ANNEX B
Each broker-dealer that receives Exchange Senior Notes for its own
account in exchange for Senior Notes, where such Senior 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 Senior Notes. See "Plan of
Distribution."
ANNEX C
Each broker-dealer that receives Exchange Senior 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 Senior 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 Senior
Notes received in exchange for Senior Notes where such Senior 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 Senior Notes may be required
to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Senior
Notes for its own account in exchange for Senior Notes, it represents that
the Senior Notes to be exchanged for the Exchange Senior 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 Senior 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.
