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8 5/8% SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated May 13, 1998
by and among
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.,
INTERNATIONAL COMFORT PRODUCTS CORPORATION,
as Parent Guarantor
and
SALOMON BROTHERS INC,
CREDIT SUISSE FIRST BOSTON CORPORATION,
and
FIRST UNION CAPITAL MARKETS,
a division of Wheat First Securities, Inc.,
as Initial Purchasers
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This Registration Rights Agreement is made and entered into this
13th day of May 1998, by and among International Comfort Products Holdings,
Inc., a Delaware corporation (the "COMPANY"), International Comfort
Products Corporation, a Canadian corporation organized under the laws of
Canada (the "PARENT GUARANTOR" and, together with the Company, the
"ISSUERS"), and Salomon Brothers Inc, Credit Suisse First Boston
Corporation and First Union Capital Markets, a division of Wheat First
Securities, Inc. (collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement, dated
May 8, 1998, among the Company, the Parent Guarantor and Initial Purchasers
(the "PURCHASE AGREEMENT"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights provided for in this Agreement to the Initial
Purchasers and their direct and indirect transferees. The execution and
delivery of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL INTEREST: As defined in Section 4(a) hereof.
ADVICE: As defined in the last paragraph of Section 5 hereof.
AFFILIATE: With respect to any specified person, "Affiliate"
shall mean any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified person. For the purposes of this definition, "control," when
used with respect to any person, means the power to direct the management
and policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"affiliated," controlling" and "controlled" have meanings correlative to
the foregoing.
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AGREEMENT: This Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with
the terms hereof.
BUSINESS DAY: Any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
COMPANY: As defined in the preamble hereof.
CONSUMMATE OR CONSUMMATE: When used to qualify the term
"Exchange Offer" shall mean validly and lawfully to issue and deliver the
Exchange Notes pursuant to the Exchange Offer for all Notes validly
tendered and not validly withdrawn pursuant thereto in accordance with the
terms of this Agreement.
CONSUMMATION DATE: The date that is 20 Business Days
immediately following the date that the Exchange Registration Statement
shall have been declared effective by the SEC (or such later date as shall
be required by applicable law).
EFFECTIVENESS PERIOD: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC pursuant thereto.
EXCHANGE DATE: As defined in Section 2(d) hereof.
EXCHANGE NOTES: The 8 5/8% Senior Notes due 2008, Series B, of
the Company, guaranteed on a senior basis by the Parent Guarantor, that are
identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as appropriate, and
the issuance thereof pursuant to the Exchange Offer shall have been
registered pursuant to an effective Registration Statement in compliance
with the Securities Act.
EXCHANGE OFFER: An offer to issue, in exchange for any and all
of the Notes, a like aggregate principal amount of Exchange Notes, which
offer shall be made by the Company pursuant to Section 2 hereof.
EXCHANGE REGISTRATION STATEMENT: As defined in Section 2(a)
hereof.
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INDEMNIFIED PERSON: As defined in Section 7(a) hereof.
INDENTURE: The Indenture, dated as of May 13, 1998, among the
Issuers and United States Trust Company of New York, as trustee thereunder,
pursuant to which the Notes are issued, as amended or supplemented from
time to time in accordance with the terms thereof.
INITIAL PURCHASERS: As defined in the preamble hereof.
ISSUE DATE: As defined in Section 2(a).
ISSUERS: As defined in the preamble hereof.
NOTES: The 8 5/8% Senior Notes due 2008, Series A, of the
Company, guaranteed on a senior basis by the Parent Guarantor, issued
pursuant to the Indenture.
PARENT GUARANTOR: As defined in the preamble hereof.
PARTICIPATING BROKER-DEALER: As defined in Section 2(e) hereof.
PRIVATE EXCHANGE: As defined in Section 2(c) hereof.
PRIVATE EXCHANGE NOTES: As defined in Section 2(c) hereof.
PROSPECTUS: 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 promulgated
pursuant to 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, Exchange Notes or Private Exchange Notes covered by
such Registration Statement, and all other amendments and supplements to
any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if
any, in such prospectus.
REGISTRATION DEFAULT: As defined in Section 4(a) hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Parent Guarantor that covers any of the Notes, Exchange
Notes or Private Exchange Notes pursuant to the provisions of this
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Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such
registration statement.
RULE 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
RULE 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
RULE 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
RULE 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
RULE 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
RULE 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
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SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
SHELF REGISTRATION: As defined in Section 3 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
SPECIAL COUNSEL: Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the
holders of Transfer Restricted Securities, Xxxxxx, Xxxx & Xxxx, special
Canadian counsel to the holders of Transfer Restricted Securities or such
other counsel as shall be agreed upon by the Issuers and holders of a
majority in aggregate principal amount of Transfer Restricted Securities,
the expenses of which holders of Transfer Restricted Securities will be
reimbursed by the Issuer pursuant to Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
TRANSFER RESTRICTED SECURITIES: The Notes, upon original
issuance thereof, and at all times subsequent thereto, each Exchange Note
as to which Section 3(a)(iii) hereof is applicable upon original issuance
and at all times subsequent thereto and each Private Exchange Note upon
original issuance thereof and at all times subsequent thereto, until in the
case of any such Note, Exchange Note or Private Exchange Note, as the case
may be, the earliest to occur of (i) the date on which any such Note has
been exchanged by a person other than a Participating Broker-Dealer for an
Exchange Note (other than with respect to an Exchange Note as to which
Section 3(a)(iii) hereof applies) pursuant to the Exchange Offer, (ii) with
respect to Exchange Notes received by Participating Broker-Dealers in the
Exchange Offer, the earlier of (x) the date on which such Exchange Note has
been sold by such Participating Broker-Dealer by means of the Prospectus
contained in the Exchange Registration Statement and (y) the date on which
the Exchange Registration Statement has been effective under the Securities
Act for a period of 6 months after the Consummation Date, (iii) a Shelf
Registration Statement covering such Note, Exchange Note or Private
Exchange Note has been declared effective by the SEC and such Note,
Exchange Note or Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Shelf Registration
Statement, (iv) the date on which such Note, Exchange Note or Private
Exchange Note, as the case may be, is distributed to the public pursuant to
Rule 144 (or any similar provisions then in effect) or is saleable pursuant
to Rule 144(k) promulgated by the SEC pursuant to the Securities Act or (v)
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the date on which such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the Indenture or any
other indenture under which such Exchange Note or Private Exchange Note was
issued.
TRUSTEE: The trustee under the Indenture.
UNDERWRITTEN REGISTRATIONS OR UNDERWRITTEN OFFERING: A
registration in connection with which securities are sold to an underwriter
for reoffering to the public pursuant to an effective Registration
Statement.
2. EXCHANGE OFFER
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Issuers shall (A)
prepare and, on or prior to 60 days after the date of original issuance of
the Notes (the "ISSUE DATE"), file with the SEC a Registration Statement
under the Securities Act with respect to an offer by the Company to the
holders of the Notes to issue and deliver to such holders, in exchange for
Notes, a like principal amount of Exchange Notes, (B) use their best
efforts to cause the Registration Statement relating to the Exchange Offer
to be declared effective by the SEC under the Securities Act on or prior to
120 days after the Issue Date, and (C) commence the Exchange Offer and use
their best efforts to issue, on or prior to the Consummation Date, the
Exchange Notes. The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on the
appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly
registered or qualified under all applicable state securities or Blue Sky
laws and will comply with all applicable tender offer rules and regulations
under the Exchange Act and state securities or Blue Sky laws. The Exchange
Offer shall not be subject to any condition, other than that the Exchange
Offer does not violate any applicable law or interpretation of the staff of
the SEC. Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuers shall have no further registration obligations other
than with respect to (i) Private Exchange Notes, (ii) Exchange Notes held
by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to
which Section 3(a)(iii) hereof applies. No securities shall be included in
the Exchange Registration Statement other than the Exchange Notes.
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(b) The Issuers may require each holder of Notes as a
condition to its participation in the Exchange Offer to represent to the
Issuers and their counsel in writing (which may be contained in the
applicable letter of transmittal) that at the time of the consummation of
the Exchange Offer (i) any Exchange Notes received by such holder will be
acquired in the ordinary course of its business, (ii) such holder will have
no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Notes and (iii) such holder is not an Affiliate of an Issuer, or if it is
an Affiliate of an Issuer, it will comply with the registration and
prospectus delivery requirements of the Securities Act, to the extent
applicable.
(c) If, prior to consummation of the Exchange Offer, any of
the Initial Purchasers holds any Notes acquired by it and having, or which
are reasonably likely to be determined to have, the status of an unsold
allotment in the initial distribution, or any other holder of Notes is not
entitled to participate in the Exchange Offer, the Company upon the request
of such Initial Purchaser or any such holder shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
such Initial Purchaser and any such holder, in exchange (the "PRIVATE
EXCHANGE") for such Notes held by such Initial Purchaser and any such
holder, a like principal amount of debt securities of the Company,
guaranteed by the Parent Guarantor on a senior basis, that are identical in
all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES")
(and which are issued pursuant to the same indenture as the Exchange
Notes). The Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the staff of the SEC, the Company shall
mail the Exchange Offer Prospectus and appropriate accompanying documents,
including appropriate letters of transmittal, to each holder of Notes
providing, 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 date of acceptance for exchange (the "EXCHANGE DATE"),
which date shall in no event be later than the Consummation Date
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(unless otherwise required by applicable law);
(iii) that holders of Notes 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 Exchange Date; and
(iv) that holders of Notes that do not tender all such
securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Notes not tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by the Company, and issue, cause the Trustee
under the Indenture (or the indenture pursuant to which
the Exchange Notes are issued) to authenticate, and mail
to each holder of Notes, Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered by
such holder.
(e) The Issuers and the Initial Purchasers acknowledge that
the staff of the SEC has taken the position that any broker-dealer that
owns Exchange Notes that were received by such broker-dealer for its own
account in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be
deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of
an unsold allotment resulting from the original offering of the Notes).
The Issuers and the Initial Purchasers also acknowledge that it
is the SEC staff's position that if the Prospectus contained in the
Exchange Registration Statement includes a plan of distribution containing
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a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligations under the
Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer, the Issuers agree (x) to use their best efforts to keep the
Exchange Registration Statement continuously effective for a period of up
to 6 months or such earlier date as each Participating Broker-Dealer shall
have notified the Company in writing that such Participating Broker-Dealer
has resold all Exchange Notes acquired in the Exchange Offer, (y) to comply
with the provisions of Section 5 of this Agreement, as they relate to the
Exchange Offer and the Exchange Registration Statement, and (z) to deliver
to such Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as to
matters reasonably requested by such Participating Broker-Dealer relating
to the Exchange Registration Statement and the related Prospectus and any
amendments or supplements thereto.
(f) The Initial Purchasers shall have no liability to any
Participating Broker-Dealer with respect to any request made pursuant to
Section 2(e).
(g) Interest on the Exchange Notes and the Private Exchange
Notes will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has
been paid on the Notes, from the date of the original issuance of the
Notes.
(h) The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture, which in either event shall provide
that the Exchange Notes shall not be subject to the transfer restrictions
set forth in the Indenture. The Indenture or such indenture shall provide
that the Exchange Notes, the Private Exchange Notes and the Notes shall
vote and consent together on all matters as one class and that neither the
Exchange Notes, the Private Exchange Notes nor the Notes will have the
right to vote or consent as a separate class on any matter.
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3. SHELF REGISTRATION
(a) If (i) the Company is not permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by any
applicable law or applicable interpretation of the staff of the SEC or (ii)
the Company has not consummated the Exchange Offer within 150 days of the
Issue Date or (iii) any holder of a Note notifies the Company on or prior
to the Exchange Date that (A) due to a change in law or policy it is not
entitled to participate in the Exchange Offer, (B) due to a change in law
or policy it may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Registration Statement is not
appropriate or available for such resales by such holder or (C) it is a
broker-dealer that owns Notes (including an Initial Purchaser that holds
Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from an Issuer or an Affiliate of an Issuer or
(iv) any holder of Private Exchange Notes so requests within 120 days after
the consummation of the Private Exchange (each such event referred to in
clauses (i) through (iv), a "SHELF FILING EVENT"), the Issuers shall cause
to be filed with the SEC pursuant to Rule 415 a shelf registration
statement (the "SHELF REGISTRATION STATEMENT") prior to the later of (x) 60
days after the Issue Date and (y) 30 days after the occurrence of such
Shelf Filing Event, relating to all Transfer Restricted Securities (the
"SHELF REGISTRATION") the holders of which have provided the information
required pursuant to Section 3(b) hereof, and shall use their best efforts
to have the Shelf Registration Statement declared effective by the SEC on
or prior to the later of (i) 120 days after the Issue Date and (ii) 60 days
after the occurrence of such Shelf Filing Event. In such circumstances,
the Issuers shall use their best efforts to keep the Shelf Registration
Statement continuously effective under the Securities Act, until (A) 24
months following the date on which the Shelf Registration Statement was
initially declared effective or (B) if sooner, the date immediately
following the date that all Transfer Restricted Securities covered by the
Shelf Registration Statement have been sold pursuant thereto (the
"EFFECTIVENESS PERIOD"); PROVIDED that the Effectiveness Period shall be
extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 and as otherwise
provided herein.
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(b) No holder of Transfer Restricted Securities may include
any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such holder furnishes
to the Company in writing, within 30 days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary prospectus included therein. No holder of Transfer Restricted
Securities shall be entitled to Additional Interest pursuant to Section 4
hereof unless and until such holder shall have provided all such reasonably
requested information. Each holder of Transfer Restricted Securities as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by such holder
not materially misleading.
4. ADDITIONAL INTEREST
(a) The parties hereto agree that the holders of Transfer
Restricted Securities will suffer damages if the Issuers fail to fulfill
their obligations pursuant to Section 2 or Section 3, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, in the event that (i) the applicable Registration Statement is
not filed with the SEC on or prior to the date specified herein for such
filing, (ii) the applicable Registration Statement has not been declared
effective by the SEC on or prior to the date specified herein for such
effectiveness after such obligation arises, (iii) if the Exchange Offer is
required to be Consummated hereunder, the Company has not exchanged
Exchange Notes for all Notes validly tendered and not validly withdrawn in
accordance with the terms of the Exchange Offer by the Consummation Date or
(iv) the applicable Registration Statement is filed and declared effective
but shall thereafter cease to be effective without being succeeded
immediately by any additional Registration Statement covering the Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be, which
has been filed and declared effective (each such event referred to in
clauses (i) through (iv), a "REGISTRATION DEFAULT"), then the interest rate
on Transfer Restricted Securities will increase ("ADDITIONAL INTEREST"),
with respect to the first 90-day period immediately following the
occurrence of such Registration Default, by 0.50% per annum and will
increase by an additional 0.50% per annum with respect to each subsequent
90-day period until such Registration Default has been cured, up to a
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maximum amount of 1.50% per annum with respect to all Registration
Defaults. Following the cure of a Registration Default, the accrual of
Additional Interest with respect to such Registration Default will cease
and upon the cure of all Registration Defaults the interest rate will
revert to the original rate.
(b) The Company shall notify the Trustee and paying agent
under the Indenture (or the trustee and paying agent under such other
indenture under which the Transfer Restricted Securities are issued)
immediately upon the happening of each and every Registration Default. The
Company shall pay the Additional Interest due on the Transfer Restricted
Securities by depositing with the paying agent (which shall not be the
Company for these purposes) for the Transfer Restricted Securities, in
trust, for the benefit of the holders thereof, prior to 11:00 A.M. on the
next interest payment date specified by the Indenture (or such other
indenture), sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date
specified by the Indenture (or such other indenture) to the record holder
entitled to receive the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the
damages that will be suffered by holders of Transfer Restricted Securities
by reason of the happening of any Registration Default.
5. REGISTRATION PROCEDURES
In connection with the Issuers' registration obligations
hereunder, the Issuers shall effect such registrations on the appropriate
form available for the sale of the Notes, the Exchange Notes or Private
Exchange Notes, as applicable, to (i) in the case of the Exchange Offer,
permit the exchange of Exchange Notes for Notes in the Exchange Offer and,
if applicable, resales of Exchange Notes by Participating Broker-Dealers
and (ii) in the case of a Shelf Registration, permit the sale of the
applicable Transfer Restricted Securities in accordance with the method or
methods of disposition thereof specified by the holders of such Transfer
Restricted Securities, and pursuant thereto the Issuers shall as
expeditiously as possible:
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(a) In the case of a Shelf Registration, a reasonable period
of time prior to the initial filing of a Shelf Registration Statement or
Prospectus and a reasonable period of time prior to the filing of any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), furnish to
the holders of the Transfer Restricted Securities included in such Shelf
Registration Statement, their Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated
by reference) will be subject to the review of such holders, their Special
Counsel and such underwriters, if any, and cause the officers and directors
of the Issuers, counsel to the Issuers and independent certified public
accountants to the Issuers to respond to such reasonable inquiries as shall
be necessary, in the opinion of respective counsel to such holders and such
underwriters, to conduct a reasonable investigation within the meaning of
the Securities Act; PROVIDED that the Issuers shall not be deemed to have
kept a Shelf Registration Statement effective during the applicable period
if any of them voluntarily takes or fails to take any reasonable action
that results in holders of the Transfer Restricted Securities covered
thereby not being able to sell such Transfer Restricted Securities pursuant
to Federal securities laws during that period (and the time period during
which such Shelf Registration Statement is required to remain effective
hereunder shall be extended by the number of days during which such holders
of Transfer Restricted Securities are not able to sell such Transfer
Restricted Securities). The Issuers shall not file any such Shelf
Registration Statement or related Prospectus or any amendments or
supplements thereto which the holders of a majority of the Transfer
Restricted Securities included in such Shelf Registration Statement shall
reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period required hereunder; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
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disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or
in such Prospectus as so supplemented;
(c) Notify the holders of Transfer Restricted Securities to be
sold or, in the case of an Exchange Offer, tendered for, their Special
Counsel and the managing underwriters, if any, promptly, and (if requested
by any such person), confirm such notice in writing, (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment is
proposed to be filed, and (B) with respect to a Registration Statement or
any post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC,
any state securities commission, any other governmental agency or any court
of any stop order, order or injunction suspending or enjoining the use of a
Prospectus or the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Notes, Exchange
Notes or Private Exchange Notes for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, and (v) its
knowledge of the happening of any event or information becoming known that
makes any statement made in a Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that it
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, not misleading, and that in the case of a Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading;
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(d) Use their best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending the use
of a Prospectus or the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Notes, Exchange Notes or Private Exchange
Notes for sale in any jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof and if requested by the managing underwriters, if any, or
the holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold pursuant to such Shelf Registration
Statement, (i) promptly incorporate in a Prospectus supplement or post-
effective amendment such information as the managing underwriters, if any,
and such holders reasonably believe should be included therein, and (ii)
make all required filings of such Prospectus supplement or such
post-effective amendment under the Securities Act as soon as practicable
after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
PROVIDED, HOWEVER, that the Issuers shall not be required to take any
action pursuant to this Section 5(e) that would, in the opinion of counsel
for the Issuers, violate applicable law;
(f) Upon written request to the Company, furnish to each
holder of Notes, Exchange Notes or Private Exchange Notes to be exchanged
or sold pursuant to a Registration Statement, their Special Counsel and
each managing underwriter, if any, without charge, at least one conformed
copy of such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to
be incorporated therein by reference, and all exhibits to the extent
requested (including those previously furnished or incorporated by
reference) as soon as practicable after the filing of such documents with
the SEC;
(g) Deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration
Statement, their Special Counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus (including each form of
prospectus) and each
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amendment or supplement thereto as such persons reasonably request; and the
Issuers hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Transfer Restricted
Securities and the underwriters, if any, in connection with the offering
and sale of the Transfer Restricted Securities covered by such Prospectus
and any amendment or supplement thereto;
(h) Prior to any public offering of Notes, Exchange Notes or
Private Exchange Notes, use their best efforts to register or qualify or
cooperate with the holders of Notes, Exchange Notes or Private Exchange
Notes to be sold or tendered for, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Notes, Exchange
Notes or Private Exchange Notes for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any such
holder or underwriter reasonably requests in writing; keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective
hereunder and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Notes, Exchange Notes
or Private Exchange Notes covered by the applicable Registration Statement;
PROVIDED, HOWEVER, that the Issuers shall not be required to (i) qualify
generally to do business in any jurisdiction where they are not then so
qualified or (ii) take any action which would subject them to general
service of process or to taxation in any jurisdiction where they are not so
subject;
(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the holders thereof and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be
sold, which certificates shall not bear any restrictive legends and shall
be in a form eligible for deposit with The Depository Trust Company and to
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or such
holders may request at least two Business Days prior to any sale of
Transfer Restricted Securities;
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(j) Upon the occurrence of any event contemplated by Section
5(c)(v), as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file
any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(k) Prior to the effective date of the Exchange Registration
Statement, to provide a CUSIP number for the Exchange Notes (and Private
Exchange Notes if applicable);
(l) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other reasonable actions in connection
therewith (including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold) in order to
expedite or facilitate the disposition of such Transfer Restricted
Securities, and, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, (i)
make such representations and warranties to the holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to the
business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
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reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the holders of the Transfer Restricted Securities being sold),
addressed to each selling holder of Transfer Restricted Securities and each
of the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Special Counsel and underwriters; (iii) use
their best efforts to obtain customary "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 is, or is required to be,
included in the Shelf Registration Statement), addressed (where reasonably
possible) to each selling holder of Transfer Restricted Securities and each
of the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling holders and the
underwriters, if any, than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by
such Shelf Registration Statement and the managing underwriters, if any);
and (v) deliver such documents and certificates as may be reasonably
requested by the holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold, their Special Counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuers;
(m) In the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer Restricted
Securities being sold, any underwriter participating in any such
disposition of Transfer Restricted Securities, and any attorney, consultant
or accountant retained by such selling holders or underwriter, at the
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offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and properties
of the Company, the Parent Guarantor and their subsidiaries (including with
respect to businesses and assets acquired or to be acquired to the extent
that such information is available to the Company or Parent Guarantor), and
cause the officers, directors, agents and employees of the Company, the
Parent Guarantor and their subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the extent that such
information is available to the Company or Parent Guarantor) to supply all
information in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Shelf Registration; PROVIDED, HOWEVER, that such persons shall first agree
in writing with the Company or Parent Guarantor, as the case may be, that
any information that is reasonably and in good faith designated by the
Company or Parent Guarantor, as the case may be, in writing as confidential
at the time of delivery of such information shall be kept confidential by
such persons, unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law (including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Shelf Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard such information by such person or (iv) such information
becomes available to such person from a source other than the Company, the
Parent Guarantor and their subsidiaries and such source is not bound by a
confidentiality agreement; and PROVIDED, FURTHER, that the foregoing
inspection and information gathering shall be coordinated by one counsel
designated by and on behalf of such other persons;
(n) Provide an indenture trustee for the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be, and cause an
indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement relating to the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection therewith, cooperate with
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the Trustee and the holders of the Notes and/or the Exchange Notes and
Private Exchange Notes, to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its reasonable efforts to cause the
Trustee to execute, all customary documents as may be required to effect
such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to their securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158, no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or
reasonable efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule
158; and
(p) Cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Transfer Restricted
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc.
(q) Use their best efforts to cause the Exchange Notes, if
issued, to be listed on the New York Stock Exchange on or prior to the
consummation of the Exchange Offer.
The Issuers may require a holder of Transfer Restricted
Securities to be included in a Registration Statement to furnish to the
Issuers such information regarding the distribution of such Transfer
Restricted Securities as is required by law to be disclosed in such
Registration Statement and the Issuers may exclude from such Registration
Statement the Transfer Restricted Securities of any holder who unreasonably
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fails to furnish such information within a reasonable time after receiving
such request.
If any such Registration Statement refers to any holder by name
or otherwise as the holder of any securities of an Issuer, then such holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such holder, to the effect
that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the
Issuers' securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements
of the Issuers, or (ii) in the event that such reference to such holder by
name or otherwise is not required by the Securities Act, the deletion of
the reference to such holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
In the case of a Shelf Registration pursuant to Section 3 hereof,
each holder of Transfer Restricted Securities agrees by acquisition of such
Transfer Restricted Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder will forthwith
discontinue disposition of such Transfer Restricted Securities covered by
such Registration Statement or Prospectus until such holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "ADVICE") by
the Company that the use of the applicable Prospectus may be resumed, and,
in either case, has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in
such Prospectus. If the Company shall give any such notice, the
Effectiveness Period shall be extended by the number of days during such
period from and including the date of the giving of such notice to and
including the date when each holder of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section 5(j)
hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
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6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not any Registration Statement is filed or becomes effective and
whether or not any Notes, Exchange Notes or Private Exchange Notes are
issued or sold pursuant to any Registration Statement. The fees and
expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (B) in
compliance with securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Notes, Exchange Notes and Private Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing Prospectuses),
(iii) reasonable fees and disbursements of counsel, including, but not
limited to, Canadian counsel, for the Issuers and the Special Counsel;
PROVIDED, HOWEVER, such fees and disbursements for Special Counsel shall be
limited to such fees and disbursements associated with a Shelf
Registration, (iv) fees and disbursements of all independent certified
public accountants referred to in Section 2(e) and Section 5(l)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (v) if
required, the reasonable fees and expenses of any "qualified independent
underwriter" and its counsel, and (vi) fees and expenses of all other
persons retained by the Issuers. In addition, the Issuers shall pay their
internal expenses (including, without limitation, all salaries and expenses
of their respective officers and employees performing legal or accounting
duties), the expense of any annual audit, and the fees and expenses
incurred in connection with the listing of the Notes, Exchange Notes or
Private Exchange Notes to be registered on any securities exchange.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each holder of Transfer Restricted Securities shall pay all
underwriting discounts and commissions of any underwriters with respect to
any Notes, Exchange Notes or Private Exchange Notes sold by it.
7. INDEMNIFICATION
(a) The Issuers agree, jointly and severally, to indemnify and
hold harmless (i) each Initial Purchaser, each holder of Notes, Exchange
Notes and Private Exchange Notes and each Participating Broker-Dealer, (ii)
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each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any of the foregoing (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchasers,
each holder of Notes, Exchange Notes and Private Exchange Notes, each
Participating Broker-Dealer and any controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"INDEMNIFIED PERSON"), from and against any and all losses, claims,
damages, liabilities and judgments arising out of or relating to any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or in any
amendment or supplement thereto, or arising out of or relating to any
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 any Prospectus or preliminary prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Indemnified Person
furnished in writing to the Issuers by or on behalf of such Indemnified
Person expressly for use therein; PROVIDED that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit
of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities and judgments purchased securities if such
untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the Prospectus
and a copy of the Prospectus shall not have been furnished to such person
in a timely manner due to the wrongful action or wrongful inaction of such
Indemnified Person.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such
Prospectus or preliminary prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Issuers
hereunder, such Indemnified Person shall promptly notify the Issuers in
writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Person
and payment of all fees and expenses. Any Indemnified Person shall have
the right to employ separate counsel in any such action and participate in
-24-
the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person, unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Issuers,
(ii) the Company shall have failed to assume the defense and employ counsel
or pay all such fees and expenses or (iii) the named parties to any such
action (including any impleaded parties) include both such Indemnified
Person and an Issuer and such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to any such Issuer (in
which case the Company shall not have the right to assume the defense of
such action on behalf of such Indemnified Person, it being understood,
however, that the Issuers shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such reasonable fees and expenses shall
be reimbursed as they are incurred). The Issuers shall not be liable for
any settlement of any such action effected without their written consent
but if settled with the written consent of the Issuers, the Issuers agree,
jointly and severally, to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement.
No Issuer shall, without the prior written consent of each Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(c) In connection with any Registration Statement pursuant to
which a holder of Transfer Restricted Securities offers or sells Transfer
Restricted Securities, such holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and
officers and any person controlling an Issuer within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each Indemnified
Person but only with respect to information relating to such holder
furnished in writing by or on behalf of such holder expressly for use in
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such Registration Statement. In any such case in which any action shall be
brought against an Issuer, any director or officer of an Issuer or any
person controlling an Issuer based on such Registration Statement and in
respect of which indemnity may be sought against a holder of Transfer
Restricted Securities, such holder shall have the rights and duties given
to the Issuers (except that if an Issuer shall have assumed the defense
thereof, such holder shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such holder),
and the Issuers, their respective directors and officers and any person
controlling an Issuer shall have the rights and duties given to the
Indemnified Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by each indemnifying party on the one hand and the indemnified party on the
other hand from the offering of the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be (it being expressly understood
and agreed that the relative benefits received by the Issuers from the
offering of the Notes, Exchange Notes or Private Exchange Notes, as the
case may be, shall be the amount of the net proceeds received by the
Company from the sale of the Notes to the Initial Purchasers), or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
each indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative fault of the each
indemnifying party on the one hand the indemnified party on the other hand
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by an indemnifying party or
such indemnified party and the parties' relative intent, knowledge, access
-26-
to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Indemnified Person were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Indemnified Person
shall be required to contribute any amount in excess of the amount by which
the net profits received by it in connection with the sale of the Notes,
Exchange Notes or Private Exchange Notes contemplated by this Agreement
exceeds the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Indemnified Person's obligations
to contribute pursuant to this Section 7(d) are several in proportion to
the respective amount of Notes, Exchange Notes or Private Exchange Notes
included in any such Registration Statement by each Indemnified Person and
not joint.
8. RULES 144 AND 144A
Each of Issuers shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in
a timely manner and, if at any time it is not required to file such reports
but in the past had been required to or did file such reports, it will,
upon the request of any holder of Transfer Restricted Securities, make
available other information as required by, and so long as necessary to
permit, sales of its Transfer Restricted Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require an Issuer to register any of its securities pursuant to the
Exchange Act.
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9. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an 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 such Transfer Restricted Securities included in such
offering, subject to the consent of the Company (which will not be
unreasonably withheld or delayed).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such Transfer Restricted
Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by an Issuer or by a
holder of Notes, Exchange Notes or Private Exchange Notes of any of its
obligations under this Agreement, each holder of Notes, Exchange Notes or
Private Exchange Notes and each Issuer, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.
Subject to Section 4 hereof, the Issuers and each holder of Notes, Exchange
Notes and Private Exchange Notes agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach of any of
the provisions of this Agreement and each hereby further agrees that, in
the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuers will not enter
into any agreement with respect to their securities that is inconsistent
with the rights granted to the holders of Notes, Exchange Notes and Private
Exchange Notes and Indemnified Persons in this Agreement or otherwise
conflicts with the provisions hereof. Without the written consent of the
holders of a majority in aggregate principal amount of the outstanding
Transfer Restricted Securities, the Issuers shall not grant to any person
any rights which conflict with or are inconsistent with the provisions of
this Agreement.
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(c) NO PIGGYBACK ON REGISTRATIONS. The Issuers shall not
grant to any of their securityholders (other than the holders of Transfer
Restricted Securities in such capacity) the right to include any of their
securities in any Registration Statement other than Transfer Restricted
Securities.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, otherwise than with the prior written consent of
the holders of not less than a majority of the then outstanding aggregate
principal amount of Transfer Restricted Securities; PROVIDED, HOWEVER,
that, for the purposes of this Agreement, Transfer Restricted Securities
that are owned, directly or indirectly, by the Issuers or any of their
Affiliates are not deemed outstanding. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of holders of Transfer
Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Transfer Restricted Securities may be given by
holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold by such holders pursuant to such
Registration Statement; PROVIDED, HOWEVER, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding
the foregoing, no amendment, modification, supplement, waiver or consent
with respect to Section 7 shall be made or given otherwise than with the
prior written consent of each Indemnified Person affected thereby.
(e) NOTICES. All notices and other communications provided
for herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
(i) if to the Issuers, as provided in the Purchase Agreement,
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(ii) if to the Initial Purchasers, as provided in the Purchase
Agreement, or
(iii) if to any other person who is then the registered holder
of Notes, Exchange Notes or Private Exchange Notes, to
the address of such holder as it appears in the register
therefor of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; one business day after being timely
delivered to a next-day air courier; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each holder of Notes,
Exchange Notes and Private Exchange Notes. The Issuers may not assign any
of their rights or obligations hereunder without the prior written consent
of each holder of Transfer Restricted Securities and each Indemnified
Person other than in connection with a merger of, or sale of all or
substantially all of, the Parent Guarantor's assets permitted by and in
conformity with the requirements of the Indenture. Notwithstanding the
foregoing, no successor or assignee of an Issuer shall have any of the
rights granted under this Agreement until such person shall acknowledge its
rights and obligations hereunder by a signed written statement of such
person's acceptance of such rights and obligations.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
(i) AGENT FOR SERVICE; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Parent
Guarantor (i) acknowledges that it has, by separate written instrument,
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designated and appointed Osler, Xxxxxx & Harcourt, 000 Xxxx Xxxxxx, Xxxxx
00X, Xxx Xxxx, XX 00000 ("OSLER") (and any successor entity), as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement, the Guarantee, the
Registration Rights Agreement or the Indenture that may be instituted in
any federal or state court in the State of New York (the "NEW YORK COURT")
or brought under federal or state securities laws, and acknowledges that
Osler has accepted such designation, (ii) submits to the jurisdiction of
any such court in any such suit or proceeding, and (iii) agrees that
service of process upon Osler and written notices of said service to the
Parent Guarantor in accordance with Section 12 shall be deemed in every
respect effective service of process upon the Parent Guarantor in any such
suit or proceeding. The Parent Guarantor further agrees to take any and
all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation
and appointment of Osler in full force and effect so long as any of the
Notes shall be outstanding; PROVIDED, HOWEVER, that the Parent Guarantor
may, by written notice to the Initial Purchasers, designate such additional
or alternative agent for service of process under this Section 19 that
(i) maintains an office located in the Borough of Manhattan, City of New
York in the State of New York and (ii) is either (x) counsel for the Parent
Guarantor or (y) a corporate service company which acts as agent for
service of process for other persons in the ordinary course of its
business. Such written notice shall identify the name of such agent for
process and the address of the office of such agent for process in the
Borough of Manhattan, City of New York, State of New York.
To the extent the Parent Guarantor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, it hereby irrevocably waives such immunity in
respect of its obligations under the above-referenced documents, to the
extent permitted by law.
(j) JUDGMENT CURRENCY. The Parent Guarantor shall indemnify
each Initial Purchaser, their respective affiliates, each person, if any,
who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their
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respective officers, directors, general partners, employees and agents
against any loss incurred by such party as a result of any judgment or
order being given or made for any amount due under this Agreement and such
judgment or order being expressed and paid in a currency (the "JUDGMENT
CURRENCY") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of
New York at which such party on the date of payment of such judgment or
order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such party. The foregoing indemnity
shall continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term "spot rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
(k) JOINT AND SEVERAL OBLIGATIONS. All of the obligations of
the Issuers hereunder shall be joint and several obligations of each of
them.
(l) SEVERABILITY. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(m) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
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"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written above.
INTERNATIONAL COMFORT PRODUCTS
HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Senior Vice President, Chief
Financial Officer and Treasurer
----------------------------
INTERNATIONAL COMFORT PRODUCTS
CORPORATION, as Parent Guarantor
By: /s/ W. Xxxxxxx Xxxxx
-------------------------------
Name: W. Xxxxxxx Xxxxx
-----------------------------
Title: Chief Executive Officer and
President
----------------------------
SALOMON BROTHERS INC, as Initial Purchaser
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------
Title: Managing Director
----------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION, as Initial Purchaser
By: /s/ M. Xxx Xxxxxx
-------------------------------
Name: M. Xxx Xxxxxx
-----------------------------
Title: Director
----------------------------
FIRST UNION CAPITAL MARKETS, a division of Wheat
First Securities, Inc., as Initial Purchaser
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
-----------------------------
Title: Vice President
----------------------------
