EXHIBIT 4.6
Aztar Corporation
7 7 / 8
% Senior Subordinated
Notes due 2014
Exchange and Registration
Rights Agreement
June 2, 2004
Banc of America Securities LLC
as representative of the
Purchasers
9 West Fifth Street, 31st Floor
New York, New York 10019
Ladies and Gentlemen:
Aztar Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to the Purchasers (as defined herein) upon the terms set forth in
the Purchase Agreement (as defined herein) $300,000,000 in
aggregate principal amount of its 7 7 / 8
%% Senior Subordinated
Notes due 2014. 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 Company agrees with
the Purchasers for the benefit of Holders (as defined herein) from
time to time of the Transfer Restricted Securities (as defined
herein) as follows:
1. Certain Definitions . For
purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective
meanings:
“Base Interest” shall
mean the interest that would otherwise accrue on the Securities
under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
“Broker-Dealer” shall
mean any broker or dealer registered with the Commission under the
Exchange Act.
“Closing Date” shall
mean the date on which the Securities are initially issued pursuant
to the Purchase Agreement.
“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.
“Effective Time” shall
mean, with respect to an Exchange Registration Statement or a Shelf
Registration Statement, the time and date as of which the
Commission declares registration statement effective or as of which
such registration statement otherwise becomes effective.
“Electing Holder” shall
mean any Holder of Transfer Restricted Securities that has timely
returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii)
hereof.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, or any successor thereto,
as the same shall be amended from time to time.
“Exchange Offer” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Exchange Registration”
shall have the meaning assigned thereto in Section 3(c)
hereof.
“Exchange Registration
Statement” shall have the meaning assigned thereto in Section
2(a) hereof.
“Exchange Securities”
shall have the meaning assigned thereto in Section 2(a)
hereof.
“Gaming Authority” shall
mean the United States federal government or any state, county,
municipality or other political subdivision or any agency or other
governmental authority thereof that now or hereafter has
jurisdiction over all or any portion of the gaming activity of the
Company or any of its subsidiaries.
“Holder” shall mean each
of the Purchasers and other Persons who acquire Transfer Restricted
Securities from time to time (including any successors or assigns),
in each case for so long as such Person owns any Transfer
Restricted Securities.
“Indenture” shall mean
the Indenture, dated as of the date hereof, between the Company and
U. S. Bank National Association, as Trustee, as the same shall be
amended from time to time.
“Notice and
Questionnaire” means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
“Person” shall mean a
corporation, association, limited liability company, partnership,
organization, business, individual, government or political
subdivision thereof or governmental agency.
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“Purchase Agreement”
shall mean the Purchase Agreement, dated May 26, 2004, among the
Purchasers and the Company relating to the Securities.
“Purchasers” shall mean
the Purchasers named in Schedule I to the Purchase
Agreement.
“Registration Default”
shall have the meaning assigned thereto in Section 2(d)
hereof.
“Registration Expenses”
shall have the meaning assigned thereto in Section 4
hereof.
“Resale Period” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Restricted Holder”
shall mean (i) a Holder that is an affiliate of the Company 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 Transfer Restricted Securities acquired by the
Broker-Dealer directly from the Company.
“Rule 144,” “Rule
144A,” “Rule 405” and “Rule 415”
shall mean, in each case, such rule promulgated under the
Securities Act (as defined below), as the same shall be amended
from time to time.
“Securities” shall mean,
collectively, the 7 7 / 8
% Senior Subordinated
Notes due 2014 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture provided that the Securities do
not include the Exchange Securities.
“Securities Act” shall
mean the Securities Act of 1933, or any successor thereto, as the
same shall be amended from time to time.
“Shelf Registration”
shall have the meaning assigned thereto in Section 2(b)
hereof.
“Shelf Registration
Statement” shall have the meaning assigned thereto in Section
2(b) hereof.
“Special Interest” shall
have the meaning assigned thereto in Section 2(d)
hereof.
“Transfer Restricted
Securities” shall mean the Securities; provided ,
however , that a Security shall cease to be a Transfer
Restricted Security when: (i) in the circumstances contemplated by
Section 2(a) hereof, the Security has been exchanged for an
Exchange Security in an Exchange Offer as contemplated in Section
2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a) hereof, is included in
a
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prospectus for use in connection with resales by
Broker-Dealers shall be deemed to be a Transfer Restricted Security
with respect to Sections 5, 6 and 9 until resale of such Transfer
Restricted Security has been effected within the 180-day period
referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, 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 in accordance with the
Shelf Registration Statement; (iii) such Security is distributed to
the public pursuant to Rule 144 under the Securities Act; or (iv)
such Security shall cease to be outstanding.
“Trust Indenture Act”
shall mean the Trust Indenture Act of 1939, or any successor
thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended 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 Exchange and Registration Rights Agreement, and the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Exchange and Registration Rights 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 Company agrees to file under the Securities Act no
later than 90 days 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
Company, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture
Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do
not contain provisions for the additional interest contemplated in
Section 2(d) below (such new debt securities are hereinafter
referred to as, the “Exchange Securities”). The Company
agrees to use its commercially reasonable efforts to cause the
Exchange Registration Statement to become effective under the
Securities Act no later than 180 days after the Closing Date. 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. The Company further
agrees to, unless the Exchange Offer would not be permitted by law
or Commission policy, use commercially reasonable efforts to
commence and complete the Exchange Offer promptly, but no later
than 45 days after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and
exchange Exchange Securities for all Transfer Restricted Securities
that have been properly 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 the debt
securities received by Holders other than Restricted Holders in the
Exchange Offer for Transfer Restricted Securities are, upon
receipt, transferable by each such Holder without restriction under
Section 5 of the Securities Act. The Exchange Offer shall be deemed
to have been completed upon the earlier to occur of (i) the Company
having exchanged the Exchange Securities for all outstanding
Transfer Restricted Securities pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to
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the Exchange Offer, Exchange Securities for all
Transfer Restricted Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which
shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. The Company shall indicate in
an “Plan of Distribution” section contained in the
prospectus contained in the Exchange Registration Statement that
any Broker-Dealer who holds Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result
of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company),
may exchange such Securities pursuant to the Exchange Offer. Such
“Plan of Distribution” section shall also contain all
other information with respect to such sales by such Broker-Dealers
that the Commission may require in order to permit such sales
pursuant thereto, but such “Plan of Distribution”
section shall not name any such Broker-Dealer or disclose the
amount of Securities held by any such Broker-Dealer, except to the
extent required by the Commission. See Shearman & Sterling
no-action letter (available July 2, 1993). The Company shall use
its commercially reasonable efforts to keep the Exchange
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(d) below to the
extent necessary to ensure that it is available for resales of
Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from
the Company), and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for
the lesser of (i) a period of 180 days from the date on which the
Exchange Registration Statement is declared effective or (ii) such
period of time as such Broker-Dealer must comply with the
prospectus delivery requirements of the Securities Act in order to
resell the Exchange Securities received in exchange for Securities
acquired for their own account as a result of such market-making or
other trading activities (the “Resale Period”); subject
in the case of either clause (i) or (ii), to any suspension of the
availability of the Exchange Registration Statement (or the
prospectus contained therein) and extension of the Resale Period
pursuant to Section 2(c) hereof.
(b) If (i) the Company is not: (A)
required to file the Exchange Offer registration statement; or (B)
permitted to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy; or
(ii) any Holder of Transfer Restricted Securities notifies the
Company prior to the 20th day following consummation of the
Exchange Offer that: (1) it is prohibited by law or Commission
policy from participating in the Exchange Offer; (2) it may not
resell the Exchange Securities acquired by it in the Exchange Offer
to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer registration statement is not
appropriate or available for such resales; (3) it is a
Broker-Dealer and owns Securities acquired directly from the
Company or an affiliate of the Company; or (4) it is a Purchaser
and that its Securities are not eligible to be exchanged for
Exchange Securities, the Company shall, in lieu of (or, in the case
of clause (2) or (4), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act as soon
as practicable after the time such obligation to file arises, 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 Transfer Restricted 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,
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the “Shelf Registration Statement”).
The Company agrees to use commercially reasonable efforts (x) to
cause the Shelf Registration Statement to become or be declared
effective no later than 120 days after such Shelf Registration
Statement is filed, and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the
second anniversary of the Effective Time or such time as there are
no longer any Transfer Restricted Securities outstanding,
provided , however , that 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 Transfer Restricted Securities unless such Holder is an
Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any Holder of
Transfer Restricted Securities that is not then an Electing Holder
and was not a Holder at the Effective Time of the Shelf
Registration Statement, to take any action reasonably necessary to
enable such Holder to use the prospectus forming a part thereof for
resales of Transfer Restricted Securities, including, without
limitation, any action necessary to identify such Holder as a
selling securityholder in the Shelf Registration Statement,
provided , however , that nothing in this clause (y)
shall relieve any such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in a
timely manner in accordance with Section 3(d)(iii) hereof. The
Company further agrees to supplement or make amendments to the
Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf
registration. Upon the filing of the Shelf Registration Statement
in accordance with this Section 2(b), the Company shall have no
further obligation to register Transfer Restricted Securities in an
Exchange Offer pursuant to Section 2(a) hereof; provided that the
other provisions of this Agreement shall continue to apply as set
forth in such provisions.
(c) Notwithstanding the provisions
of (i) the last two sentences of Section 2(a) and (ii) Section
2(b), the Company may suspend the availability of the Exchange
Registration Statement during the Resale Period or the Shelf
Registration Statement and the related prospectus if (A) the board
of directors of the Company determines in good faith that it is in
the best interests of the Company not to disclose the existence of
or facts surrounding any proposed or pending material corporate
transaction involving the Company during the period of such
suspension, and the Company mails notification to the Electing
Holders within five business days after the Board of Directors
makes such determination, or (B) the Prospectus contained in the
Exchange Registration Statement or the Shelf Registration
Statement, as the case may be, contains an untrue statement of
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; provided that (1) the Resale
Period or (2) the periods during which the Shelf Registration
Statement is required to be available, as applicable, shall be
extended by the number of days during which such Registration
Statement was not available pursuant to the foregoing provisions
(which such extension shall be the Holder’s sole remedy
hereunder (so long as the Company complies with its other
obligations hereunder, including Sections 3(c)(iv) and 3(e) hereof,
if applicable));
(d) In the event that (i) the
Company has not filed the Exchange Registration Statement or Shelf
Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such
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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 2(b), respectively, or (iii)
the Exchange Offer has not been completed within 45 days after the
initial effective date 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 2(b)
hereof is filed and declared effective but shall thereafter either
be withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(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 9(b), special interest (“Special Interest”), in
addition to the Base Interest, shall accrue on all Securities at a
per week rate of $.05 per $1,000 principal amount of Notes held by
that Holder for the first 90 days of the Registration Default
Period, increasing by an additional $.05 per week per $1,000
principal amount of Notes with respect to each subsequent 90-day
period until all Registration Defaults have been cured up to a
maximum amount of liquidated damages of $.50 per week per $1,000
principal amount of Notes. Following the cure of all Registration
Defaults, the accrual of Special Interest will cease. The
applicable Registration Default will be deemed cured (A) upon the
filing of the required Registration Statement in the case of clause
(i) above, (B) upon the effectiveness of such required Registration
Statement in the case of clause (ii) above, (C) upon the completion
of the Exchange Offer in the case of clause (iii) above and (D) in
the case of clause (iv), upon the applicable Registration Statement
once again becoming effective and usable or a new Registration
Statement becoming effective and usable with respect to the
Transfer Restricted Securities covered by the Registration
Statement that ceased to be effective or usable. No Person shall
have any other remedy under this Agreement or otherwise as a result
of any Registration Default so long as the Company makes timely
payments of all such Special Interest required by this paragraph.
The Special Interest due shall be payable on each interest payment
date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the
Indenture.
(e) The Company shall take all
actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so
contemplated.
(f) 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. Registration Procedures
.
If the Company files 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 Offer or the Shelf Registration, as the case may
be, the Company shall qualify the Indenture under the Trust
Indenture Act of 1939.
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(b) 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.
(c) In connection with the
Company’s obligations with respect to the registration of
Exchange Securities as contemplated by Section 2(a) (the
“Exchange Registration”), if applicable, the Company
shall:
(i) prepare and file with the
Commission no later than 90 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized
by the Company 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
commercially reasonable efforts to cause such Exchange Registration
Statement to become effective no later than 180 days after the
Closing Date;
(ii) promptly 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) hereof 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 upon request from Broker-Dealer holding Exchange
Securities promptly provide such Broker-Dealer 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 and
the rules and regulations of the Commission thereunder, 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 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 request by the Commission for amendments or supplements to
such Exchange Registration Statement or prospectus or for
additional information, (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) if at any time the
representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Company 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 of
any proceeding for such
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purpose, or (F) 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 and the rules and regulations of the Commission
thereunder 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 Company
would be required, pursuant to Section 3(c)(iii)(F) above, 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 the rules and regulations of
the Commission thereunder 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 its 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 its reasonable best efforts
to (A) register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (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 to enable each Broker-Dealer
holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however, that the Company shall
not 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
3(c)(vi), (2) consent to general service of process or taxation in
any such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its reasonable best
efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer
and the offering and sale of Exchange Securities by Broker-Dealers
during the Resale Period;
(viii) provide a CUSIP number for
all Exchange Securities, not later than the applicable Effective
Time; and
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(ix) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months
after the effective date of such Exchange Registration Statement,
an earning statement (which is not required to be audited) of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the
Company’s obligations with respect to the Shelf Registration,
if applicable, the Company shall:
(i) prepare and file with the
Commission within the time periods specified in Section 2(b), a
Shelf Registration Statement on any form which may be utilized by
the Company and which shall register all of the Transfer Restricted
Securities for resale by the Holders thereof in accordance with
such method or methods of disposition as may be specified in
writing by such of the Holders as, from time to time, may be
Electing Holders and use commercially reasonable efforts to cause
such Shelf Registration Statement to become effective within the
time periods specified in Section 2(b);
(ii) not less than 20 calendar days
prior to the Effective Time of the Shelf Registration Statement,
mail the Notice and Questionnaire to the Holders of Transfer
Restricted Securities; no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of
the Effective Time, and no Holder shall be entitled to use the
prospectus forming a part thereof for resales of Transfer
Restricted Securities at any time, unless such Holder has returned
a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth in the Notice and Questionnaire
such Notice and Questionnaire is reasonably acceptable to the
Company; provided, however, Holders of Transfer Restricted
Securities shall have at least 20 calendar days from the date on
which the Notice and Questionnaire is first mailed to such Holders
to return a completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of
the Shelf Registration Statement, upon the request of any Holder of
Transfer Restricted Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such Holder; provided
that the Company shall not be required to take any action to name
such Holder as a selling securityholder in the Shelf Registration
Statement or to enable such Holder to use the prospectus forming a
part thereof for resales of Transfer Restricted Securities until
such Holder has returned a completed and signed Notice and
Questionnaire to the Company and such Notice and Questionnaire is
reasonably acceptable to the Company;
(iv) promptly prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the
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form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment concurrently with or promptly following its
being used or filed with the Commission;
(v) comply with the provisions of
the Securities Act with respect to the disposition of all of the
Transfer Restricted Securities covered by such Shelf Registration
Statement in accordance with the intended methods of disposition by
the Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing
Holders, (B) the underwriters (which term, for purposes of this
Exchange and Registration Rights Agreement, shall include a Person
deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the Electing Holders the
reasonable opportunity to participate at such Person’s
expense (except as provided in Section 4 hereof) in the preparation
of such Shelf Registration Statement, each prospectus included
therein or filed with the Commission and each amendment or
supplement thereto;
(vii) for a reasonable period prior
to the filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b), make available at reasonable
times following a request at the Company’s principal place of
business or such other reasonable place for inspection by the
Persons referred to in Section 3(d)(vi) who shall certify to the
Company in writing that they have a current intention to sell the
Transfer Restricted Securities pursuant to the Shelf Registration
such financial and other information and books and records of the
Company, and cause the officers and employees, counsel and
independent certified public accountants of the Company to respond
to such inquiries, as shall be reasonably necessary, to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided , however , that the
inspection described in this paragraph (vii) shall be performed by
a single law firm reasonably satisfactory to the Company selected
by a majority in principal amount of the Electing Holders and all
Persons having access to such information shall be required to
maintain in confidence and not to disclose to any other Person any
information or records reasonably designated by the Company as
being confidential, until such time as (A) such information becomes
a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such Person shall
be required so to disclose such information pursuant to a subpoena
or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and such Person shall give the Company prompt written notice
of such requirement), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in order
that such Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
11
(viii) promptly notify each of the
Electing Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing (A) when such
Shelf 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 Shelf Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Transfer Restricted Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose,
or (F) if at any time when a prospectus is required to be delivered
under the Securities Act, that such Shelf 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 and the rules and regulations of the Commission
thereunder 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;
(ix) use commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective
amendment thereto at the earliest practicable date;
(x) if requested in writing by any
managing underwriter or underwriters, any placement or sales agent
or any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission
and as such managing underwriter or underwriters, such agent or
such Electing Holder specifies should be included therein relating
to the terms of the sale of such Transfer Restricted Securities,
including information with respect to the principal amount of
Transfer Restricted Securities being sold by such Electing Holder
or agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of such
Transfer Restricted Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any
other terms of the offering of the Transfer Restricted Securities
to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
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(xi) furnish to each Electing
Holder, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to
in Section 3(d)(vi) such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder, agent or underwriter, as the case may be)
and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus),
in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, and such
other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate
the offering and disposition of the Transfer Restricted Securities
owned by such Electing Holder, offered or sold by such agent or
underwritten by such underwriter and to permit such Electing
Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents
to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each
case in the form most recently provided to such Person by the
Company, in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use its reasonable best
efforts to (A) register or qualify the Transfer Restricted
Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions
as any Electing Holder and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably request,
(B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales
