101 / 2% Senior Notes due 2015

 

 

the “Trustee” ) . Pursuant to the Purchase Agreement and the Indenture, the Guarantors are required to guarantee (collectively, the “Guarantees” ) the Issuer’s obligations under the Notes and the Indenture. References to the “Securities” shall mean, collectively, the Notes and, when issued, the Guarantees and, unless the context otherwise requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable Security” shall include a reference to the related Guarantee. References to the “Issuer” refer to (x) prior to the consummation of the merger of Windy with and into the Company (the “Merger” ) , Windy and (y) from and after the consummation of the Merger, the Company. The terms and provisions of this Agreement shall not be effective against the Company and its subsidiaries until the Merger is consummated. In order to induce the Purchasers (including the Market-Maker as defined herein) to enter into the Purchase Agreement, the Issuer has agreed to provide the registration rights set forth in this Agreement for the benefit of the Purchasers and any subsequent holder or holders of the Securities. The execution and delivery of this Agreement is a condition to the Purchasers’ obligations under the Purchase Agreement. As an inducement to the Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchasers thereunder, the Issuer and the Guarantors agree with the Purchasers for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:

 

1.            Certain Definitions.

 

For purposes of this Agreement, the following terms shall have the following respective meanings:

 

“ Additional Interest ” shall have the meaning assigned thereto in Section 2(c).

 

The term “broker-dealer” shall mean any broker or dealer registered with the Commission under the Exchange Act.

 

“ Business Day ” shall have the meaning set forth in Rule 13e-4(a)(3) promulgated by the Commission under the Exchange Act, as the same may be amended or succeeded from time to time.

 

“ Closing Date ” shall mean the date on which the Securities are initially issued.

 

“ Commission ” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

 

“ EDGAR System ” means the EDGAR filing system of the Commission and the rules and regulations pertaining thereto promulgated by the Commission in Regulation S-T under the Securities Act and the Exchange Act, in each case as the same may be amended or succeeded from time to time (and without regard to format).

 

“Effective Time,” in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective, (ii) a Shelf Registration, shall mean the time and date as of which the

 

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Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective and (iii) a Market-Making Registration, shall mean the time and date as of which the Commission declares the Market Making Registration effective or as of which the Market-Making Registration Statement otherwise becomes effective.

 

“ Electing Holder ” shall mean any holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Issuer in accordance with Section 4(d)(ii) or Section 4(d)(iii) and the instructions set forth in the Notice and Questionnaire.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder, as the same may be amended or succeeded from time to time.

 

“ Exchange Offer ” shall have the meaning assigned thereto in Section 2(a).

 

“ Exchange Registration ” shall have the meaning assigned thereto in Section 4(c).

 

“ Exchange Registration Statement ” shall have the meaning assigned thereto in Section 2(a).

 

“ Exchange Securities ” shall have the meaning assigned thereto in Section 2(a).

 

“ Guarantor ” shall have the meaning assigned thereto in the Indenture.

 

The term “ holder ” shall mean each of the Purchasers and other persons who acquire Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.

 

“ Market-Maker ” shall have the meaning set forth in Section 3 hereof.

 

“ Market-Maker’s Information ” shall have the meaning set forth in Section 3(d) hereof.

 

“ Market-Making Registration ” shall have the meaning set forth in Section 3(a)(i) hereof.

 

“ Market-Making Registration Statement ” shall have the meaning set forth in Section 3(a)(i) hereof.

 

“ Material Adverse Effect ” shall have the meaning set forth in Section 6(c).

 

“Notice and Questionnaire” means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto with such changes as the Issuer may reasonably determine.

 

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The term “p erson” shall mean a corporation, limited liability company, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.

 

“ Registrable Securities ” shall mean the Securities; provided, however , that a Security shall cease to be a Registrable Security upon the earliest to occur of the following: (i) the Security has been exchanged for an Exchange Security in an Exchange Offer as contemplated in Section 2(a) ( provided that any Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a prospectus for use in connection with resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5, 6 and 9 until resale of such Registrable Security has been effected within the 90-day period referred to in Section 2(a)); (ii) a Shelf Registration Statement registering such Security under the Securities Act has been declared or becomes effective and such Security has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in which any legend borne by such Security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Issuer or pursuant to the Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to be outstanding; provided further, however , that with respect to the Market-Maker or the Market-Making Registration Statement, Registrable Securities shall include all Securities until they are no longer outstanding.

 

“ Registration Default ” shall have the meaning assigned thereto in Section 2(c).

 

“ Registration Default Period ” shall have the meaning assigned thereto in Section 2(c).

 

“ Registration Expenses ” shall have the meaning assigned thereto in Section 5.

 

“ Resale Period ” shall have the meaning assigned thereto in Section 2(a).

 

“Restricted Holder” shall mean (i) a holder that is an affiliate of the Issuer within the meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course of such holder’s business, (iii) a holder who has arrangements or understandings with any person to participate in the Exchange Offer for the purpose of distributing Exchange Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Issuer.

 

“ Rule 144 ,” “ Rule 405 ,” “ Rule 415 ,” “ Rule 424 ,” “ Rule 430B ” and “ Rule 433 ” shall mean, in each case, such rule promulgated by the Commission under the Securities Act (or any successor provision), as the same may be amended or succeeded from time to time.

 

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“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder, as the same may be amended or succeeded from time to time.

 

“Shelf Registration” shall have the meaning assigned thereto in Section 2(b).

 

“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b).

 

“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated by the Commission thereunder, as the same may be amended or succeeded from time to time.

 

Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision.

 

2.                                             Registration Under the Securities Act.

 

(a)                                        Except as set forth in Section 2(b) below, the Issuer agrees to file under the Securities Act, to the extent not prohibited by any applicable law or applicable interpretations of the Commission, no later than 18 months after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement,” and such offer, the “Exchange Offer” ) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Issuer and guaranteed by the Guarantors, which debt securities and guarantee are substantially identical to the Securities and the related Guarantee, respectively (and are entitled to the benefits of the Indenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below (such new debt securities hereinafter called “ Exchange Securities ”) . The Issuer agrees to use all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act no later than 21 months after the Closing Date (or 2 years after the Closing Date if the Exchange Registration Statement is subject to review by the Commission). The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuer further agrees to use all commercially reasonable efforts to (i) commence the Exchange Offer promptly following the Effective Time of such Exchange Registration Statement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the Commission under the Exchange Act and (iii) exchange Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only if (i) the debt securities and related guarantee to be received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities will be, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and without material restrictions under the blue sky or

 

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securities laws of such jurisdictions of the United States as are necessary to consummate the Exchange Offer and (ii) the Issuer shall have exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the expiration of the Exchange Offer. The Issuer shall keep the Exchange Offer open until a date that is at least 30 Business Days following the commencement of the Exchange Offer. The Issuer agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period” ) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90 th  day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities.

 

(b)                                       If (i) on or prior to the time the Exchange Offer is completed existing Commission interpretations are changed such that the debt securities or the related guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date (or 360 days if the Exchange Registration Statement is subject to review by the Commission) and the Exchange Offer has not been completed within 30 Business Days of such Effective Time or (iii) any holder of Registrable Securities notifies the Issuer prior to the 20 th  Business Day following the completion of the Exchange offer that: (A) it is prohibited by law or Commission policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities to the public without delivering a prospectus and the prospectus supplement contained if the Exchange Registration Statement is not appropriate or available for such resales or (C) it is a broker-dealer and owns Securities acquired directly from the Issuer or an affiliate of the Issuer, then the Issuer and the Guarantors shall, in lieu of (or, in the case of clause (iii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), file under the Securities Act no later than 30 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement” ) . The Issuer agrees to use all commercially reasonable efforts to cause the Shelf Registration Statement to become or be declared effective no later than 90 days after such Shelf Registration Statement filing obligation arises (or 180 days if the Shelf Registration Statement is subject to review by the Commission, but no earlier than 270 days, or 360 days, as applicable, after the date of the Indenture); provided that if at any time the Issuer is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuer and the Guarantors shall file the Exchange Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuer agrees to use all commercially reasonable efforts to keep such Shelf Registration Statement continuously effective for a period ending on the earlier of the second anniversary of the Closing Date or such time as there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities or be entitled to receive

 

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Additional Interest for a failure with respect to a Shelf Registration Statement pursuant to Section 2(c) below unless such holder is an Electing Holder. The Issuer agrees, after the Effective Time of the Shelf Registration Statement and as soon as reasonably practicable following the request of any holder of Registrable Securities, which delivers a completed Notice and Questionnaire and is not then an Electing Holder, to use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and 424(b) under the Securities Act identifying such holder), provided, however, that nothing in this clause shall require the Issuer to take any such action with respect to any such holders more than once per quarter.

 

Notwithstanding the foregoing, the Issuer may suspend the offering and sale under the Shelf Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines necessary if (A) the Board of Directors determines (i) there are valid business reasons for doing so (until such business reasons cease to exist), including, without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, or (ii) if the Shelf Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits 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, and (B) the Issuer notifies the Electing Holders within five days after the Board of Directors makes the relevant determination set forth in clause (A); provided that the period of suspension under clause (A)(ii) above shall not exceed 120 days in each year during which the Shelf Registration Statement is required to be effective. In addition, the Issuer may suspend the offering and sale under the Shelf Registration Statement if such Shelf Registration Statement was required to be filed due to a failure to consummate the Exchange Offer within the required time period if such suspension occurs following the consummation of the Exchange Offer.

 

(c)                                        In the event that (i) the Issuer and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been completed within 30 Business Days after the Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made) or (iv) any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) is filed and declared effective but shall thereafter either be withdrawn by the Issuer or shall become subject to an effective stop order issued pursuant to Section 9(d) of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein) without being succeeded immediately by an additional registration statement filed and declared effective (each such event referred to in clauses (i) through (iv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period” ) , then, as liquidated damages for such Registration Default, subject to the provisions of Section 10(b), the interest rate borne by the Registrable

 

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Securities during the Registration Default Period shall be increased ( “Additional Interest” ) by 0.25% per annum upon the occurrence of the Registration Default, which rate will increase by 0.25% per annum each 90-day period that such Registration Default Period continues, provided that the maximum aggregate amount of Additional Interest will in no event exceed 1.00% per annum. Upon (1) the filing of the Exchange Registration Statement (in the case of clause (i) above), (2) the effectiveness of the Exchange Registration Statement (in the case of clause (ii) above) or (3) the consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement (in the case of clause (iii) above) or (4) the additional Exchange Registration Statement or Shelf Registration Statement, as the case may be, being filed and declared effective (in the case of clause (iv) above), the interest rate borne by the Registrable Securities will be reduced to the original interest rate if we are otherwise in compliance with this paragraph; provided, further, that if, after any such reduction in interest rate, a different event specified in clause (i), (ii), (iii) or (iv) above occurs, the interest rate will again be increased pursuant to the foregoing provisions. Additional Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may exist at such time. The accrual of Additional Interest shall be the exclusive monetary remedy available to the holders of Registrable Securities for any Registration Default.

 

(d)                                       Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.

 

3.                                             Market-Making. The provisions of this Section 3 shall be effective only if the Issuer, in its discretion, gives written notice to Merrill Lynch, Pierce, Fenner & Smith Incorporated (in such capacity, the “Market-Maker” ) that this Section 3 is effective, and shall cease to be effective (with respect to compliance after such non-effectiveness) five Business Days after the Company gives written notice to the Market-Maker that this Section 3 is no longer effective.

 

(a)                                        For the sole benefit of the Market-Maker and its affiliates (as defined in the rules and regulations of the Commission), so long as, following notice from the Issuer pursuant to the preceding paragraph, (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) in the reasonable opinion of the Market-Maker, a market making prospectus would be required for the Market-Maker to make a market in the Registrable Securities or Exchange Securities in the ordinary course under applicable law or Commission interpretation of law, the following provisions shall apply:

 

(i)                                           The Issuer shall file under the Securities Act a registration statement (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission), in a form reasonably approved by the Market-Maker (such filing, the “Market-Making Registration,” and such registration statement, the “Market-Making Registration Statement” ) . The Issuer agrees to use its commercially reasonable efforts to cause the

 

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Market-Making Registration Statement to be declared effective and to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Securities at the time an Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the Market-Making Registration shall provide for the resale by the Market-Maker of such Securities and shall be kept continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Securities. The Issuer further agrees to supplement or make amendments to the Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Market-Making Registration Statement.

 

(ii)                                        The Issuer shall notify the Market-Maker (A) when any post-effective amendment to the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the Commission for any post-effective amendment to the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the Commission of any stop order suspending the effectiveness of the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto contain an untrue statement of a material fact or omit to state a material fact necessary, in light of the circumstances under which they were made, to be not misleading or otherwise that requires the making of any changes in the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.

 

(iii)                                     If any event contemplated by Section 3(a)(ii)(B) through (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall promptly prepare and file with the Commission a post-effective amendment to the Market-Making Registration Statement or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(iv)                                    In the event of the issuance of any stop order suspending the effectiveness of the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use promptly its reasonable best efforts to obtain its withdrawal.

 

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(v)                                       The Issuer shall furnish to the Market-Maker, without charge, (i) at least one conformed copy of the Market-Making Registration Statement and any post-effective amendment thereto; and (ii) as many copies of the related prospectus and any amendment or supplement thereto as the Market-Maker may reasonably request.

 

(vi)                                    The Issuer shall consent to the use of the prospectus contained in the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.

 

(vii)                                 Notwithstanding the foregoing provisions of this Section 3, the Issuer may suspend the offering and sale under the Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines necessary if (A) the Board of Directors determines (i) there are valid business reasons for doing so (until such business reasons cease to exist), including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, or (ii) if the Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits 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, and (B) the Issuer notifies the Market-Maker within five days after the Board of Directors makes the relevant determination set forth in clause (A); provided that the period of suspension under clause (A)(ii) shall not exceed 120 days in each year during which the Market-Making Registration Statement is required to be effective. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 3(a)(vii), it will discontinue use of the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of the Market-Making Registration Statement may be resumed.

 

(b)                                            In connection with the Market-Making Registration, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its commercially reasonable efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.

 

(c)                                             Prior to the effective date of the Market-Making Registration Statement, the Issuer will use its reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by the Market-Making Registration Statement; provided that the Issuer will not be required to qualify generally to do business in any jurisdiction where they are not then so qualified or to take any action which would subject them to general service of process or to taxation in any such jurisdiction where they are not then so subject.

 

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4.                 Registration Procedures.

 

If the Issuer and the Guarantors file a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:

 

(a)           At or before the Effective Time of the Exchange Registration or the Shelf Registration, as the case may be, the Issuer shall qualify the Indenture under the Trust Indenture Act.

 

(b)           In the event that such qualification would require the appointment of a new trustee under the Indenture, the Issuer shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

 

(c)           In connection with the Issuer’s and the Guarantors’ obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “Exchange Registration” ) , if applicable, the Issuer and the Guarantors shall:

 

(i)              prepare and file with the Commission, no later than 180 days after the Closing Date, an Exchange Registration Statement on any form which may be utilized by the Issuer and the Guarantors and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated by Section 2(a), and use all commercially reasonable efforts to cause such Exchange Registration Statement to become effective no later than 270 days after the Closing Date (or 360 days if the Exchange Registration Statement is subject to review by the Commission);

 

(ii)             as soon as reasonably practicable prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities Act and the Trust Indenture Act, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;

 

(iii)            promptly notify each broker-dealer that has requested or received copies of the prospectus included in such Exchange Registration Statement, and confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any comments by the Commission and by the blue sky or

 

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securities commissioner or regulator of any state with respect thereto or any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, in each case, that relate to any information provided by an Electing Holder, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation or threatening (in writing) of any proceeding for such purpose or (E) if at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(iv)            in the event that the Issuer and the Guarantors would be required, pursuant to Section 4(c)(iii)(G), to notify any broker-dealers holding Exchange Securities, promptly prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(v)             use all commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;

 

(vi)            use all commercially reasonable efforts to (A) register or qualify the Exchange Securities under the state securities laws or blue sky laws of such U.S. jurisdictions as a participating holder of Registrable Securities reasonably requests in writing, to the extent required by such laws, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary or advisable to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however, that neither the Issuer nor any Guarantor shall be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 4(c)(vi), (2) consent to general service of process in any such jurisdiction

 

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or become subject to taxation in any such jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or other governing documents or any agreement between it and its stockholders;

 

(vii)            provide a CUSIP number for all Exchange Securities, not later than the applicable Effective Time; and

 

(viii)           comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders no later than eighteen months after the Effective Time of such Exchange Registration Statement, an earnings statement of the Issuer and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Issuer, Rule 158 thereunder).

 

(d)          In connection with the Issuer’s and the Guarantors’ obligations