Exhibit 4.4
EXECUTION VERSION
$450,000,000
CB RICHARD ELLIS SERVICES, INC.
11.625% Senior Subordinated Notes due 2017
REGISTRATION RIGHTS AGREEMENT
June 15, 2009
Banc of America Securities
LLC
Credit Suisse Securities (USA) LLC
J.P. Morgan Securities Inc.
As Representatives of the Initial
Purchasers
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Dear Sirs:
CB Richard Ellis Services, Inc., a
Delaware corporation (the “Issuer”), proposes to issue
and sell to Banc of America Securities LLC, Credit Suisse
Securities (USA) LLC, J.P. Morgan Securities Inc. and certain other
initial purchasers (collectively, the “Initial
Purchasers”), upon the terms set forth in a purchase
agreement of even date herewith (the “Purchase
Agreement”), $450,000,000 aggregate principal amount of its
11.625% Senior Subordinated Notes due 2017 (the “Initial
Securities”) to be unconditionally guaranteed (the
“Guaranties”) by CB Richard Ellis Group, Inc., a
Delaware corporation (the “Parent”) and certain
subsidiaries of the Issuer, as set forth in the Purchase Agreement
(collectively, the “Guarantors” and together with the
Issuer, the “Company”). The Initial Securities will be
issued pursuant to an Indenture, dated as of June 18, 2009,
(the “Indenture”) among the Issuer, the Guarantors
named therein and Wells Fargo Bank, National Association, as
trustee (the “Trustee”). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the
Company agrees with the Initial Purchasers, for the benefit of the
holders of the Initial Securities (including, without limitation,
the Initial Purchasers), the Exchange Securities (as defined below)
and the Private Exchange Securities (as defined below)
(collectively the “Holders”), as follows:
1. Registered Exchange
Offer. Unless not permitted by applicable
law (after the Company has complied with the last paragraph of this
Section 1), the Company shall prepare and, not later than 90
days after the date of original issue of the Initial Securities
(the “Issue Date”), file with the Securities and
Exchange Commission (the “Commission”) a registration
statement (the “Exchange Offer Registration Statement”)
on an appropriate form under the Securities Act of 1933, as amended
(the “Securities
Act”), with respect to a proposed offer
(the “Registered Exchange Offer”) to the Holders of
Transfer Restricted Securities (as defined in Section 6
hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to
issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material
respects to the Initial Securities and registered under the
Securities Act (the “Exchange Securities”). The Company
shall use its reasonable best efforts to (i) cause such
Exchange Offer Registration Statement to become effective under the
Securities Act within 180 days after the Issue Date of the Initial
Securities and (ii) keep the Exchange Offer Registration
Statement effective for not less than 20 business days (or longer,
if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period
being called the “Exchange Offer Registration
Period”).
If the Company commences the
Registered Exchange Offer, the Company (i) will be entitled to
consummate the Registered Exchange Offer 20 business days after
such commencement ( provided that the Company has accepted
all the Initial Securities theretofore validly tendered in
accordance with the terms of the Registered Exchange Offer) and
(ii) will be required to consummate the Registered Exchange
Offer no later than 40 days after the date on which the Exchange
Offer Registration Statement is declared effective (such 40th day
being the “Consummation Deadline”).
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable
each Holder of Transfer Restricted Securities electing to exchange
the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the
Securities Act, acquires the Exchange Securities in the ordinary
course of such Holder’s business and has no arrangements with
any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without
any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the
several states of the United States.
The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for
its own account as a result of market making activities or other
trading activities, for Exchange Securities (an “Exchanging
Dealer”), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover,
(b) Annex B hereto in the “Exchange Offer
Procedures” section and the “Purpose of the Exchange
Offer” section and (c) Annex C hereto in the “Plan
of Distribution” section of such prospectus in connection
with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and
(ii) an Initial Purchaser that elects to sell Exchange
Securities acquired in exchange for Initial Securities constituting
any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
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The Company shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the prospectus contained
therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the
Exchange Securities; provided , however , that
(i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an
Initial Purchaser, such period shall be the lesser of 180 days and
the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period
is extended pursuant to Section 3(j) below) and (ii) the
Company shall make such prospectus and any amendment or supplement
thereto, available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than
180 days after the consummation of the Registered Exchange Offer.
Notwithstanding the foregoing, the Company shall not be obligated
to keep the Exchange Offer Registration Statement continuously
effective to the extent set forth above if the Company determines,
in its reasonable judgment, upon advice of counsel, that the
continued effectiveness and usability of the Exchange Offer
Registration Statement would (i) require the disclosure of
material information, which the Company or any of its subsidiaries
has a bona fide business reason for preserving as confidential or
(ii) interfere with any existing or prospective financing,
acquisition, corporate reorganization or other material business
situation, transaction or negotiation involving the Company or any
of its subsidiaries; provided , however , that the
failure to keep the Exchange Offer Registration Statement effective
and usable for such reason shall last no longer than 20 days
(whereafter Additional Interest (as defined in Section 6(a))
shall accrue and be payable until the Exchange Offer Registration
Statement becomes effective and usable) and shall in no event occur
during the first 30 days after the Exchange Offer Registration
Statement becomes effective. In the event that the Company does not
keep the Exchange Offer Registration Statement continuously
effective as provided in the immediately preceding sentence, the
number of days during which the Exchange Offer Registration
Statement is not continuously effective, which shall include the
date the Company gives notice that the Exchange Offer Registration
Statement is no longer effective, shall be added on to, and
therefore extend, the period during which the Company is obligated
to use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the
prospectus contained therein.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “Private
Exchange”) for the Initial Securities held by such Initial
Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material
respects to the Initial Securities (the “Private Exchange
Securities”). The Initial Securities, the Exchange Securities
and the Private Exchange Securities are herein collectively called
the “Securities”.
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In connection with the Registered
Exchange Offer, the Company shall:
(a) mail to each Holder a
copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered
Exchange Offer open for not less than 20 business days (or longer,
if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services
of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
(d) permit Holders to
withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply with
all applicable laws.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Company shall:
(x) accept
for exchange all the Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver
to the Trustee for cancellation all the Initial Securities so
accepted for exchange; and
(z) cause the
Trustee to authenticate and deliver promptly to each Holder of the
Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the
Initial Securities of such Holder so accepted for
exchange.
The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
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Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding
with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an
“affiliate,” as defined in Rule 405 of the Securities
Act, of the Company or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements
of the Securities Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it
will receive Exchange Securities for its own account in exchange
for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange
Securities.
Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. Shelf Registration
. If, (i) applicable interpretations of
the staff of the Commission do not permit the Company to effect a
Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) the Registered Exchange Offer is not consummated
by the 220th day after the Issue Date, (iii) any Initial
Purchaser so requests with respect to the Initial Securities (or
the Private Exchange Securities) not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and held by it
following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is
prohibited by law or Commission policy from participating in the
Registered Exchange Offer or, in the case of any Holder (other than
an Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange and any such Holder so
requests, the Company shall take the following actions (the date on
which any of the conditions described in the foregoing clauses
(i) through (iv) occur, including in the case of clauses
(iii) or (iv) the receipt of the required notice, being a
“Trigger Date”):
(a) The Company shall as
promptly as practicable (but in no event more than 90 days
after the Trigger Date (such 90th day being a “Filing
Deadline”) file with the Commission and thereafter use its
reasonable best efforts to cause to be declared
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effective: in the case of clause
(i), no later than 180 days after the Issue Date and, in the case
of clauses (ii) through (iv), no later than 90th date after
the Trigger Date (such 180th day after the Issue Date in the case
of clause (i), or such 90th day after the Trigger Date in the case
of clauses (ii) through (iv) being an
“Effectiveness Deadline”) a registration statement (the
“Shelf Registration Statement” and, together with the
Exchange Offer Registration Statement, a “Registration
Statement”) on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the “Shelf Registration”);
provided , however , that no Holder (other than the
Initial Purchasers) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use
its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will
terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are
no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof), provided ,
however , the Company shall not be obligated to keep the
Shelf Registration Statement continuously effective to the extent
set forth below if (i) the Company determines, in its
reasonable judgment, upon advice of counsel, that the continued
effectiveness and usability of the Shelf Registration statement
would (x) require the disclosure of material information which
the Company or any of its subsidiaries has a bona fide business
reason for preserving as confidential or (y) interfere with
any financing, acquisition, corporate reorganization or other
material transaction involving the Company or any of its
subsidiaries, provided that the failure to keep the Shelf
Registration Statement effective and usable for offers and sales of
Securities for the reasons set forth in clauses (x) and
(y) above shall last no longer than 60 days in any 12-month
period (whereafter Additional Interest shall accrue and be payable
until the Shelf Registration Statement becomes effective and
usable) and (ii) the Company promptly thereafter complies with
the requirements of Section 3(j) hereof, if applicable;
provided , further , that the number of days of any
actual Suspension Period (as hereinafter defined) shall be added on
to, and therefore extend, the two-year period specified above. Any
such period during which the Company is excused from keeping the
Shelf Registration Statement effective and usable for offers and
sales of securities is referred to herein as a “Suspension
Period.” A Suspension Period shall commence on and include
the date that the Company gives notice that the Shelf Registration
Statement is no longer effective or the prospectus included therein
is no longer usable for offers and sales of Securities and shall
end on the earlier to occur of (1) the
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date on which each seller of
Securities covered by the Shelf Registration Statement either
receives the copies of the supplemented or amended prospectus
contemplated by Section 3(j) hereof or is advised in writing
by the Company that the use of the prospectus may be resumed and
(2) the expiration of 60 days in any 12-month period during
which one or more Suspension Periods has been in effect. The
Company shall be deemed not to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless such
action is (A) required by applicable law or (B) permitted
by this paragraph.
(c) Notwithstanding any
other provisions of this Agreement to the contrary, the Company
shall cause the Shelf Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
3. Registration Procedures
. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall
apply:
(a) The Company shall
(i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use
its reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose; (ii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the
“Exchange Offer Procedures” section and the
“Purpose of the Exchange Offer” section and in Annex C
hereto in the “Plan of Distribution” section of the
prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled “Plan of
Distribution,” reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission
with respect to the potential “underwriter” status of
any broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Securities
7
Exchange Act of 1934, as amended
(the “Exchange Act”)) of Exchange Securities received
by such broker-dealer in the Registered Exchange Offer (a
“Participating Broker-Dealer”), whether such positions
or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Company shall
give written notice to the Initial Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the
Registration Statement or any amendment thereto has been filed with
the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any
request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for
additional information;
(iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, of the issuance by the Commission
of a notification of objection to the use of the form on which the
Registration Statement has been filed, and of the happening of any
event that causes the Company to become an “ineligible
issuer,” as defined in Commission Rule 405.
(iv) of the
receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the
happening of any event that requires the Company to make changes in
the Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
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(c) The Company shall
make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness
of the Registration Statement.
(d) The Company shall
furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). The Company
shall not, without the prior consent of the Initial Purchasers,
make any offer relating to the Securities that would constitute a
“free writing prospectus,” as defined in Commission
Rule 405.
(e) The Company shall
deliver to each Exchanging Dealer and each Initial Purchaser, and
to any other Holder who so requests, without charge, at least one
copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules, and, if any Initial Purchaser or any such Holder
requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall,
during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration,
without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall
deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in
the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by
any Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer in connection
with the offering and sale of the Exchange Securities covered by
the prospectus, or any amendment or supplement thereto, included in
such Exchange Offer Registration Statement.
(h) Prior to any public
offering of the Securities pursuant to any Registration Statement,
the Company shall use its reasonable best efforts to register or
qualify or cooperate with the Holders of the Securities included
therein and their respective
9
counsel in connection with the
registration or qualification of the Securities for offer and sale
under the securities or “blue sky” laws of such states
of the United States as any Holder of the Securities 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 Securities covered by such Registration
Statement; provided , however , that the Company
shall not be required to (i) qualify generally to do business
in any jurisdiction where it is not then so qualified or
(ii) take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is not then
so subject.
(i) The Company shall
cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered
in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence
of any event contemplated by paragraphs (ii) through
(v) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a
post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not
contain an 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. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend
the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers, the Holders
of the Securities and any such Participating Broker-Dealers shall
suspend use of such prospectus, and the period of effectiveness of
the Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement provided for in
Section 1 above shall each be extended by the number of days
from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j). During the period during which the Company is
required to maintain an effective Shelf Registration Statement
pursuant to this Agreement, the Company will prior to the
three-year expiration of that Shelf Registration Statement file,
and use its reasonable best efforts to cause to be declared
effective (unless it becomes effective automatically upon filing)
within a period that avoids any interruption in the ability of
Holders of Securities covered by the expiring Shelf Registration
Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the
“Shelf Registration Statement” for purposes of this
Agreement.
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(k) Not later than the
effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case
may be, and provide the applicable trustee with printed
certificates for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company will
comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally
available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a)
of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company’s first fiscal
quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month
period.
(m) The Company shall
cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (“Trust Indenture Act”), in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) The Company may
requi
