EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated
as of May 5, 2006
Among
CMP
SUSQUEHANNA CORP. and
THE
GUARANTORS LISTED ON SCHEDULE I HERETO
and
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
GOLDMAN, SACHS & CO.,
DEUTSCHE BANK SECURITIES INC.,
UBS SECURITIES LLC and
BANC OF AMERICA SECURITIES LLC
9-7/8%
Senior Subordinated Notes due 2014
TABLE
OF CONTENTS
| |
|
|
|
|
|
|
| |
|
|
|
Page |
|
1.
|
|
Definitions |
|
|
1 |
|
|
|
|
|
|
|
|
|
|
2.
|
|
Exchange Offer |
|
|
5 |
|
|
|
|
|
|
|
|
|
|
3.
|
|
Shelf Registration |
|
|
9 |
|
|
|
|
|
|
|
|
|
|
4.
|
|
Additional Interest |
|
|
10 |
|
|
|
|
|
|
|
|
|
|
5.
|
|
Registration Procedures |
|
|
11 |
|
|
|
|
|
|
|
|
|
|
6.
|
|
Registration Expenses |
|
|
20 |
|
|
|
|
|
|
|
|
|
|
7.
|
|
Indemnification and
Contribution. |
|
|
21 |
|
|
|
|
|
|
|
|
|
|
8.
|
|
Rules 144 and 144A |
|
|
24 |
|
|
|
|
|
|
|
|
|
|
9.
|
|
Underwritten Registrations |
|
|
25 |
|
|
|
|
|
|
|
|
|
|
10.
|
|
Miscellaneous |
|
|
26 |
|
-i-
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “ Agreement
”) is dated as of May 5, 2006, among CMP Susquehanna
Corp., a Delaware corporation (the “ Company ”),
the guarantors listed on Schedule I hereto (the “
Guarantors ”) and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs
& Co., Deutsche Bank Securities Inc., UBS Securities LLC and
Banc of America Securities LLC, as initial purchasers (the “
Initial Purchasers ”).
This
Agreement is entered into in connection with the Purchase
Agreement, dated as of May 1, 2006 (the “ Purchase
Agreement ”), by and among the Company, CMP Susquehanna
Radio Holdings Corp., CMP KC Corp., CMP Houston- KC, LLC and the
Initial Purchasers, as amended by the Joinder Agreement, dated as
of May 5, 2006, among the Subsidiary Guarantors named therein
and the Initial Purchasers (the “ Joinder Agreement
”) which provides for, among other things, the sale by the
Company to the Initial Purchasers of $250,000,000 aggregate
principal amount of the Company’s (as defined below) 9-7/8%
Senior Subordinated Notes due 2014 (the “ Notes
”). The Notes are issued under an indenture, dated as of the
date hereof (as amended or supplemented from time to time, the
“ Indenture ”), among the Company, the
Guarantors and Wells Fargo Bank, National Association, as trustee
(the “ Trustee ”). Pursuant to the Purchase
Agreement and the Indenture, the Guarantors are required to
guarantee (collectively, the “ Guarantees ”) the
Issuers’ obligations under the Notes and the Indenture.
References to the “ Securities ” shall mean,
collectively, the Notes and, when issued, the Guarantees.
References to the “Issuers” refer to (a) prior to
the consummation of the Merger (as defined in the Purchase
Agreement), solely to the Company, CMP Susquehanna Radio Holdings
Corp., CMP KC Corp. and CMP KC-Houston, LLC, and
(ii) following the Merger and upon the execution of the
Joinder Agreement, to the Company and the Guarantors. In order to
induce the Initial Purchasers to enter into the Purchase Agreement,
the Issuers have agreed to provide the registration rights set
forth in this Agreement for the benefit of the Initial Purchasers
and any subsequent holder or holders of the Securities. The
execution and delivery of this Agreement is a condition to the
Initial Purchasers’ obligations under the Purchase
Agreement.
The
parties hereby agree as follows:
As used
in this Agreement, the following terms shall have the following
meanings:
Additional Interest : See Section 4(a) hereof.
Advice : See the last paragraph of Section 5
hereof.
-2-
Agreement : See the introductory paragraphs hereto.
Applicable Period : See Section 2(b) hereof.
Business Day : Shall have the meaning ascribed to such term
in Rule 14d-1 under the Exchange Act.
Company : See the introductory paragraphs hereto.
Effectiveness Date : With respect to any Shelf Registration
Statement, the 90th day after the Filing Date with respect thereto;
provided , however , that if the Effectiveness Date
would otherwise fall on a day that is not a Business Day, then the
Effectiveness Date shall be the next succeeding Business Day.
Effectiveness Period : See Section 3(a) hereof.
Event Date : See Section 4(b) hereof.
Exchange Act : The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Exchange Notes : See Section 2(a) hereof.
Exchange Offer : See Section 2(a) hereof.
Exchange Offer Registration Statement : See Section 2(a)
hereof.
Exchange Securities : See Section 2(a) hereof.
Filing Date : The 90th day after the delivery of a Shelf
Notice as required pursuant to Section 2(c) hereof; provided
, however , that if the Filing Date would otherwise fall on
a day that is not a Business Day, then the Filing Date shall be the
next succeeding Business Day.
Guarantees : See the introductory paragraphs hereto.
Guarantors : See the introductory paragraphs hereto.
Holder : Any holder of a Registrable Security or Registrable
Securities.
Indenture : See the introductory paragraphs hereto.
Information : See Section 5(n) hereof.
Initial Purchasers : See the introductory paragraphs
hereto.
-3-
Initial Shelf Registration : See Section 3(a) hereof.
Inspectors : See Section 5(n) hereof.
Issue Date : May 5, 2006, the date of original issuance
of the Notes.
Issuers : See the introductory paragraphs hereto.
Merger : See the introductory paragraphs hereto.
NASD : See Section 5(r) hereof.
New
Guarantees : See Section 2(a) hereof.
Notes : See the introductory paragraphs hereto.
Participant : See Section 7(a) hereof.
Participating Broker-Dealer : See Section 2(b) hereof.
Person : An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or
other legal entity.
Private Exchange : See Section 2(b) hereof.
Private Exchange Notes : See Section 2(b) hereof.
Prospectus : The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the
Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
Purchase Agreement : See the introductory paragraphs
hereof.
Records : See Section 5(n) hereof.
Registrable Securities : Each Security upon its original
issuance and at all times subsequent thereto, each Exchange
Security as to which Section 2(c)(iv) hereof is applicable
upon original issuance and at all times subsequent thereto and each
Private Exchange Note (and
-4-
the
related Guarantees) upon original issuance thereof and at all times
subsequent thereto, until, in each case, the earliest to occur of
(i) a Registration Statement (other than, with respect to any
Exchange Securities as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering
such Security, Exchange Security or Private Exchange Note (and the
related Guarantees) has been declared effective by the SEC and such
Security, Exchange Security or such Private Exchange Note (and the
related Guarantees), as the case may be, has been disposed of in
accordance with such effective Registration Statement,
(ii) such Security has been exchanged pursuant to the Exchange
Offer for an Exchange Security or Exchange Securities that may be
resold without restriction under state and federal securities laws,
(iii) such Security, Exchange Security or Private Exchange
Note (and the related Guarantees), as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such
Security, Exchange Security or Private Exchange Note (and the
related Guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under
the Securities Act.
Registration Statement : Any registration statement of the
Issuers that covers any of the Securities, the Exchange Securities
or the Private Exchange Notes (and the related Guarantees) filed
with the SEC under the Securities Act, including, in each case, the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated
by reference in such registration statement.
Rule 144 : Rule 144 under the Securities
Act.
Rule 144A : Rule 144A under the Securities
Act.
Rule 405 : Rule 405 under the Securities
Act.
Rule 415 : Rule 415 under the Securities
Act.
Rule 424 : Rule 424 under the Securities
Act.
SEC : The U.S. Securities and Exchange Commission.
Securities : See the introductory paragraphs hereto.
Securities Act : The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice : See Section 2(c) hereof.
Shelf Registration : See Section 3(b) hereof.
Shelf Registration Statement : Any Registration Statement
relating to a Shelf Registration.
-5-
Shelf Suspension Period : See Section 3(a) hereof.
Subsequent Shelf Registration : See Section 3(b)
hereof.
TIA : The Trust Indenture Act of 1939, as amended.
Trustee : The trustee under the Indenture and the trustee
under any indenture (if different) governing the Exchange
Securities and Private Exchange Notes (and the related
Guarantees).
Underwritten registration or underwritten offering : A
registration in which securities of the Issuers are sold to an
underwriter for reoffering to the public.
Except
as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases,
forms, no-action letters and other regulatory requirements
(collectively, “ Regulatory Requirements ”)
shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto
having substantially the same effect therewith; provided
that Rule 144 shall not be deemed to amend or replace
Rule 144A.
(a) Unless
the Exchange Offer would violate applicable law or any applicable
interpretation of the staff of the SEC, the Issuers shall file with
the SEC a Registration Statement (the “ Exchange Offer
Registration Statement ”) on an appropriate registration
form with respect to a registered offer (the “ Exchange
Offer ”) to exchange any and all of the Registrable
Securities for a like aggregate principal amount of debt securities
of the Issuers (the “ Exchange Notes ”),
guaranteed, to the extent applicable, on an unsecured senior
subordinated basis by the Guarantors (the “ New
Guarantees ” and, together with the Exchange Notes, the
“ Exchange Securities ”), that are identical in
all material respects to the Notes except that (i) the
Exchange Notes shall contain no restrictive legend thereon,
(ii) interest thereon shall accrue from the last date on which
interest was paid on the Notes or, if no such interest has been
paid, from the Issue Date and (iii) which are entitled to the
benefits of the Indenture or a trust indenture which is identical
in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are
necessary to comply with the TIA) and which, in either case, has
been qualified under the TIA. The Exchange Offer shall comply with
all applicable tender offer rules and regulations under the
Exchange Act and other applicable laws. The Issuers shall
(w) prepare and file with the SEC the Exchange Offer
Registration Statement with respect to the Exchange Offer;
(x) use their reasonable best efforts to cause the Exchange
Offer Registration Statement to be declared effective under the
Securities Act, (y) keep the Exchange Offer open for at least
20 Business Days (or longer if required by applicable law) after
the date that notice of the Exchange Offer is mailed to Holders;
and (z) consummate the Exchange Offer on or prior to the 360th
day following the Issue Date.
-6-
Each
Holder (including, without limitation, each Participating
Broker-Dealer) that participates in the Exchange Offer, as a
condition to participation in the Exchange Offer, will be required
to represent to the Issuers in writing (which may be contained in
the applicable letter of transmittal) that:
(i) any
Exchange Securities acquired in exchange for Registrable Securities
tendered are being acquired in the ordinary course of business of
the Person receiving such Exchange Securities, whether or not such
recipient is such Holder itself;
(ii) at
the time of the commencement or consummation of the Exchange Offer
neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Securities from such Holder has
an arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the
Exchange Securities in violation of the provisions of the
Securities Act;
(iii) neither
the Holder nor, to the actual knowledge of such Holder, any other
Person receiving Exchange Securities from such Holder is an
“affiliate” (as defined in Rule 405) of the
Issuers or, if it is an affiliate of the Issuers, it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in
accordance with Section 5 hereof in order to have their
Registrable Securities included in the Shelf Registration Statement
and benefit from the provisions regarding Additional Interest in
Section 4 hereof;
(iv) if
such Holder is not a broker-dealer, neither such Holder nor, to the
actual knowledge of such Holder, any other Person receiving
Exchange Securities from such Holder is engaging in or intends to
engage in a distribution of the Exchange Securities; and
(v) if
such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Securities for its own account in exchange
for Securities that were acquired as a result of market-making
activities or other trading activities and that it will comply with
the applicable provisions of the Securities Act (including, but not
limited to, the prospectus delivery requirements thereunder).
Upon
consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to
apply, mutatis mutandis , solely with respect to
Registrable Securities that are Private Exchange Notes (and the
related Guarantees), Exchange Securities as to which
Section 2(c)(iv) is applicable and Exchange Securities held by
the Participating Broker-Dealers, and the Issuers shall have no
further obligation to register Registrable Securities (other than
Private Exchange Notes (and the related Guarantees) and Exchange
Securities as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.
No
securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement.
-7-
(b) The
Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled
“Plan of Distribution,” which shall contain a summary
statement of the positions taken or policies made by the staff of
the SEC with respect to the potential “underwriter”
status of any broker-dealer that is the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Notes received by such broker-dealer in the Exchange
Offer (a “ Participating Broker-Dealer ”),
whether such positions or policies have been publicly disseminated
by the staff of the SEC or such positions or policies represent the
prevailing views of the staff of the SEC. Such “Plan of
Distribution” section shall also expressly permit, to the
extent permitted by applicable policies and regulations of the SEC,
the use of the Prospectus by all Participating Broker-Dealers, and
include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Securities in compliance
with the Securities Act.
The
Issuers shall use their 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 is necessary to comply with applicable law in
connection with any resale of the Exchange Securities;
provided , however , that such period shall not be
required to exceed 90 days, such longer period if extended
pursuant to the last paragraph of Section 5 hereof (the
“ Applicable Period ”).
If,
prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Company, upon the
request of the Initial Purchasers, shall simultaneously with the
delivery of the Exchange Notes issue and deliver to the Initial
Purchasers, in exchange (the “ Private Exchange
”) for such Notes held by any such Holder, a like principal
amount of notes (the “ Private Exchange Notes ”)
of the Company, guaranteed by the Guarantors, that are identical in
all material respects to the Exchange Notes except for the
placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as
the Exchange Notes if permitted by the CUSIP Service Bureau.
In
connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to
each Holder of record entitled to participate in the Exchange Offer
a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) keep the Exchange Offer open for
not less than 20 Business Days from the date that notice of the
Exchange Offer is mailed to Holders (or longer if required by
applicable law);
-8-
(3) utilize the services of a
depositary for the Exchange Offer with an address in the Borough of
Manhattan, The City of New York or in Wilmington, Delaware;
(4) permit Holders to withdraw
tendered Notes at any time prior to the close of business, New York
time, on the last Business Day on which the Exchange Offer remains
open; and
(5) otherwise comply in all material
respects with all laws, rules and regulations applicable to the
Exchange Offer.
As soon as practicable after the
close of the Exchange Offer and any Private Exchange, the Issuers
shall:
(1) accept for exchange all
Registrable Securities validly tendered and not validly withdrawn
pursuant to the Exchange Offer and any Private Exchange;
(2) deliver to the Trustee for
cancellation all Registrable Securities so accepted for exchange;
and
(3) cause the Trustee to authenticate
and deliver promptly to each Holder of Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder so accepted for exchange;
provided that, in the case of any Notes held in global form
by a depositary, authentication and delivery to such depositary of
one or more replacement Notes in global form in an equivalent
principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The
Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or
any applicable interpretation of the staff of the SEC; (ii) no
action or proceeding shall have been instituted or threatened in
any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with
respect to the Issuers; and (iii) all governmental approvals
shall have been obtained, which approvals the Issuers deem
necessary for the consummation of the Exchange Offer or Private
Exchange.
The
Exchange Securities and the Private Exchange Notes (and related
guarantees) shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the
TIA or is exempt from such qualification and shall provide that the
Exchange Securities 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 none of the Exchange Notes, the Private
Exchange Notes or the Notes will have the right to vote or consent
as a separate class on any matter.
(c) If,
(i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 360 days of the Issue Date,
(iii) any holder of Private Exchange Notes so requests in
writing to the Issuers at any time within 30 days after the
consummation of the Exchange Offer, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Securities on the date of the exchange that
may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an
affiliate of the Issuers within the meaning of the Securities Act)
and so notifies the Issuers within 30 days after such Holder
first becomes aware of such restrictions, in the case of each of
clauses (i) to and including (iv) of this sentence, then
the Issuers shall promptly deliver to the Trustee (to deliver to
the Holders) written notice thereof (the “ Shelf
Notice ”) and shall file a Shelf Registration pursuant to
Section 3 hereof.
If at
any time a Shelf Notice is delivered as contemplated by Section
2(c) hereof, then:
(a)
Shelf Registration . The Issuers shall promptly file with
the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the “ Initial Shelf
Registration ”). The Issuers shall use their reasonable
best efforts to file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. The Initial Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration
of such Registrable Securities for resale by Holders in the manner
or manners designated by them (including, without limitation, one
or more underwritten offerings). The Issuers shall not permit any
securities other than the Registrable Securities to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The
Issuers shall use their reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until
the earliest of (i) the date that is two years from the Issue
Date; (ii) such shorter period ending when all Registrable
Securities covered by the Initial Shelf Registration have been sold
in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration or
(iii) the date upon which all Registrable Securities become
eligible for resale without regard to volume, manner of sale or
other restrictions contained in Rule 144(k) (the “
Effectiveness Period ”); provided ,
however , that the Effectiveness Period in respect of the
Initial Shelf Registration shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the Securities Act and as
otherwise provided herein. Notwithstanding anything to the contrary
in this Agreement, at any time, the
-10-
Issuers
may delay the filing of any Initial Shelf Registration Statement or
delay or suspend the effectiveness thereof, for a reasonable period
of time, but not in excess of 60 consecutive days or more than
three (3) times during any calendar year (each, a “
Shelf Suspension Period ”), if the Board of Directors
of the Company determines reasonably and in good faith that the
filing of any such Initial Shelf Registration Statement or the
continuing effectiveness thereof would require the disclosure of
non-public material information that, in the reasonable judgment of
the Board of Directors of the Company, would be detrimental to the
Issuers if so disclosed or would otherwise materially adversely
affect a financing, acquisition, disposition, merger or other
material transaction or such action is required by applicable
law.
(b)
Withdrawal of Stop Orders; Subsequent Shelf Registrations .
If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the sale of
all of the Securities registered thereunder), the Issuers shall use
their reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event
shall file an additional Shelf Registration Statement pursuant to
Rule 415 covering all of the Registrable Securities covered by
and not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration (each, a “ Subsequent Shelf
Registration ”). If a Subsequent Shelf Registration is
filed, the Issuers shall use their reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective under
the Securities Act as soon as practicable after such filing and to
keep such subsequent Shelf Registration continuously effective for
a period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein, the term “ Shelf
Registration ” means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(c)
Supplements and Amendments . The Issuers shall promptly
supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration
form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable
Securities (or their counsel) covered by such Registration
Statement with respect to the information included therein with
respect to one or more of such Holders, or, if reasonably requested
by any underwriter of such Registrable Securities, with respect to
the information included therein with respect to such
underwriter.
(a) The
Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers agree to pay, jointly and severally, as
liquidated damages, additional interest on the Notes (“
Additional Interest ”) if (A) the Issuers have
neither (i) exchanged Exchange Securities for all
-11-
Securities validly tendered in accordance with the terms of the
Exchange Offer nor (ii) had a Shelf Registration Statement
declared effective, in either case on or prior to the 360th day
after the Issue Date, (B) notwithstanding clause (A), the
Issuers are required to file a Shelf Registration Statement and
such Shelf Registration Statement is not declared effective on or
prior to the 360th day after the date such Shelf Registration
Statement filing was requested or required or (C), if applicable, a
Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during the
Effectiveness Period (other than because of the sale of all of the
Securities registered thereunder), then Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.25% per
annum (which rate will be increased by an additional 0.25% per
annum for each subsequent 90 day period that such Additional
Interest continues to accrue, provided that the rate at which such
Additional Interest accrues may in no event exceed 1.00% per annum)
(such Additional Interest to be calculated by the Issuers)
commencing on the (x) 361st day after the Issue Date, in the
case of (A) above, (y) the 361st day after the date such
Shelf Registration Statement filing was requested or required in
the case of (B) above or (z) the day such Shelf
Registration ceases to be effective in the case of (C) above;
provided , however , that upon the exchange of the
Exchange Securities for all Securities tendered (in the case of
clause (A) of this Section 4), upon the effectiveness of
the applicable Shelf Registration Statement (in the case of clause
(B) of this Section 4), or upon the effectiveness of the
applicable Shelf Registration Statement which had ceased to remain
effective (in the case of clause (C) of this Section 4),
Additional Interest on the Notes in respect of which such events
relate as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
Notwithstanding any other provisions of this Section 4, the
Issuers shall not be obligated to pay Additional Interest provided
in Sections 4(a)(B) during a Shelf Suspension Period permitted
by Section 3(a) hereof.
(b) The
Issuers shall notify the Trustee within one business day after each
and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an “ Event
Date ”). Any amounts of Additional Interest due pursuant
to (a) of this Section 4 will be payable in cash
semiannually on each May 15 and November 15 (to the
holders of record on the May 1 and November 1 immediately preceding
such dates), commencing with the first such date occurring after
any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by the Issuers by
multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Securities, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360 day year comprised of twelve
30 day months and, in the case of a partial month, the actual
number of days elapsed), and the denominator of which is 360.
| |
5. |
|
Registration Procedures |
In
connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such
registrations to permit the sale of the securities covered thereby
in accordance with the intended method or methods of disposition
thereof, and pursuant
-12-
thereto
and in connection with any Registration Statement filed by the
Issuers hereunder the Issuers shall:
(a) Prepare
and file with the SEC (prior to the applicable Filing Date in the
case of a Shelf Registration), a Registration Statement or
Registration Statements as prescribed by Section 2 or 3
hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided , however , that if (1)
such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period
relating thereto from whom the Issuers have received prior written
notice that it will be a Participating Broker-Dealer in the
Exchange Offer, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers
shall furnish to and afford counsel for the Holders of the
Registrable Securities covered by such Registration Statement (with
respect to a Registration Statement filed pursuant to
Section 3 hereof) or counsel for such Participating
Broker-Dealer (with respect to any such Registration Statement), as
the case may be, and counsel to the managing underwriters, if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each
case at least three Business Days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Securities covered
by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare
and file with the SEC such amendments and post-effective amendments
to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period, the Applicable Period or until consummation of the Exchange
Offer, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424;
and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by any Participating
Broker-Dealer covered by any such Prospectus in all material
respects. The Issuers shall be deemed not to have used their
reasonable best efforts to keep a Registration Statement effective
if it voluntarily takes any action that is reasonably expected to
result in selling Holders of the Registrable Securities covered
thereby or Participating Broker-Dealers seeking to sell Exchange
Securities not being able to sell such Registrable Securities or
such Exchange Securities during that period unless such action is
required by applicable law or permitted by this Agreement.
-13-
(c) If
(1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period relating thereto from whom the Issuers
have received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, notify the selling Holders of
Registrable Securities (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such
Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within three
Business Days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, at the sole
expense of the Issuers, one conformed copy of such Registration
Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities or resales of
Exchange Securities by Participating Broker-Dealers the
representations and w
| 
