<PAGE>
EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 23, 2005
Among
SUNSHINE ACQUISITION II, INC.
SS&C TECHNOLOGIES, INC.
and
THE GUARANTORS NAMED HEREIN,
as Issuers,
and
WACHOVIA CAPITAL MARKETS, LLC
J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Initial Purchasers
11 3/4% Senior Subordinated Notes due 2013
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TABLE OF CONTENTS
<TABLE>
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Page
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1.
Definitions..........................................................
1
2. Exchange
Offer.......................................................
5
3. Shelf
Registration...................................................
9
4. Additional
Interest..................................................
11
5. Registration
Procedures..............................................
12
6. Registration
Expenses................................................
21
7. Indemnification and
Contribution..................................... 22
8. Rules 144 and
144A...................................................
26
9. Underwritten
Registrations...........................................
26
10.
Miscellaneous........................................................
27
</TABLE>
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<PAGE>
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated November 23, 2005 (the
"Agreement") is entered into by and among Sunshine Acquisition II,
Inc., a
Delaware corporation ("Sunshine"), SS&C Technologies, Inc., a
Delaware
corporation (the "Company"), the guarantors listed in Schedule 1
hereto (the
"Guarantors"), and Wachovia Capital Markets, LLC, J.P. Morgan
Securities Inc.
and Banc of America Securities LLC (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among Sunshine and the Initial Purchasers, dated
as of November
17, 2005 (the "Purchase Agreement"), which provides for, among
other things, the
sale by Sunshine to the Initial Purchasers of $205,000,000
aggregate principal
amount of its 11 3/4% Senior Subordinated Notes due 2013 (the
"Notes"), which,
upon consummation of the Acquisition (as defined in the Purchase
Agreement),
will be assumed by the Company and will be guaranteed by the
Guarantors (the
"Guarantees"). 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' obligation
to purchase
the Securities under the Purchase Agreement.
References herein to "Securities" shall mean, collectively, the
Notes
and the Guarantees. References herein to "Issuer" shall mean (x)
prior to the
consummation of the Acquisition, Sunshine and (y) from and after
consummation of
the Acquisition, the Company. References herein to "Issuers" shall
mean (x)
prior to the consummation of the Acquisition, Sunshine and (y) from
and after
consummation of the Acquisition, the Company and the
Guarantors.
The parties hereby agree as follows:
1.
Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereto.
Advice: See the last paragraph of Section 5 hereto.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereto.
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Blackout Period: See Section 3(d) hereto.
Business Day: Any day that is not a Saturday, Sunday or a day on
which
banking institutions in New York are authorized or required by law
to be closed.
Buyer-Parent: Sunshine Acquisition Corporation, a Delaware
corporation.
Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 270th day after the Issue Date and (ii)
any Shelf
Registration Statement, the 120th 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) hereto.
Event Date: See Section 4 hereto.
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) hereto.
Exchange Offer: See Section 2(a) hereto.
Exchange Offer Registration Statement: See Section 2(a) hereto.
Filing Date: The 45th day after the delivery of a Shelf Notice
as
required pursuant to Section 2(c) hereto; 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 Note or Registrable Notes.
Indenture: The Indenture, dated as of November 23, 2005, by and
among
the Sunshine, the Company, the Guarantors and Wells Fargo Bank,
National
Association, as Trustee, pursuant to which the Notes are being
issued, as
amended or supplemented from time to time in accordance with the
terms thereto.
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Information: See
Section 5(n) hereto.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereto.
Inspectors: See Section 5(n) hereto.
Issue Date: November 23, 2005, the date of original issuance of
the
Notes.
Issuer or Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereto.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereto.
Participating Broker-Dealer: See Section 2(b) hereto.
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) hereto.
Private Exchange Notes: See Section 2(b) hereto.
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 hereto.
Records: See Section 5(n) hereto.
Registrable Notes: Each Note (and the related Guarantees) upon
its
original issuance and at all times subsequent thereto, each
Exchange Note (and
the related guarantees) as to which Section 2(c)(iv) hereto is
applicable upon
original issuance and at all times subsequent
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thereto and each Private Exchange Note (and 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 Note as to which Section 2(c)(iv) hereto is
applicable,
the Exchange Offer Registration Statement) covering such Note,
Exchange Note or
Private Exchange Note (and the related guarantees) has been
declared effective
by the SEC and such Note, Exchange Note 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 Note has been
exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange
Notes (and the
related guarantees) that may be resold without restriction under
state and
federal securities laws, (iii) such Note, Exchange Note 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 Note, Exchange Note 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 Notes, the Exchange Notes or the Private Exchange
Notes (and
the related Guarantees or guarantees, as the case may be) filed
with the SEC
under the Securities Act, including 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
United States Securities and Exchange Commission or any
successor agency thereto.
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) hereto.
Shelf Registration: See Section 3(b) hereto.
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Shelf Registration Statement: Any Registration Statement relating
to a
Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereto.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if
any)
under any indenture governing the Exchange Notes and Private
Exchange Notes (and
the related guarantees).
Underwritten registration or underwritten offering: A registration
in
which securities of one or more 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.
2.
Exchange Offer
(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 Notes
for a like
aggregate principal amount of debt securities of the Issuer (the
"Exchange
Notes"), guaranteed by the Guarantors, that are identical in all
material
respects to the Securities, except that (i) the Exchange Notes
shall contain no
restrictive legend thereon and (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 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
other 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 use their commercially
reasonable efforts to
(x) cause the Exchange Offer Registration Statement to be declared
effective
under the Securities Act on or before the Effectiveness Date; (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 or
otherwise transmitted to Holders; and (z) consummate the Exchange
Offer on or
prior to the 300th day following the Issue Date.
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Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates 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 Notes acquired in
exchange for
Registrable Notes tendered are being acquired in the ordinary
course of business
of the Person receiving such Exchange Notes, 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 Notes from such Holder has an
arrangement or
understanding with any Person to participate in the distribution of
the Exchange
Notes 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 Notes 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 hereto in order
to have
their Notes included in the Shelf Registration Statement and
benefit from the
provisions regarding Additional Interest in Section 4 hereto; (iv)
neither such
Holder nor, to the actual knowledge of such Holder, any other
Person receiving
Exchange Notes from such Holder is engaging in or intends to engage
in a
distribution of the Exchange Notes; and (v) if such Holder is a
Participating
Broker-Dealer, such Holder has acquired the Registrable Notes 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
solely with
respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as
to which Section 2(c)(iv) is applicable and Exchange Notes held by
Participating
Broker-Dealers, and the Issuers shall have no further obligation to
register
Registrable Notes (other than Private Exchange Notes and Exchange
Notes as to
which clause 2(c)(iv) hereto applies) pursuant to Section 3
hereto.
No securities other than the Exchange Notes shall be included in
the
Exchange Offer Registration Statement.
(b) The Issuers shall 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 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
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extent permitted by applicable policies and regulations of the SEC,
the use of
the Prospectus by all Persons subject to the prospectus delivery
requirements of
the Securities Act, including, to the extent permitted by
applicable policies
and regulations of the SEC, all Participating Broker-Dealers, and
include a
statement describing the means by which Participating
Broker-Dealers may resell
the Exchange Notes in compliance with the Securities Act.
The Issuers shall use their commercially reasonable efforts to
keep
the Exchange Offer Registration Statement effective and to amend
and supplement
the Prospectus contained therein to the extent necessary 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 Notes; provided, however, that such period shall not be
required to
exceed 90 days or such longer period if extended pursuant to the
last paragraph
of Section 5 hereto (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 Issuers 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 Issuers, 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.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or otherwise transmit, or cause to be mailed or
otherwise
transmitted, 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) use their commercially reasonable efforts to keep the
Exchange
Offer open for not less than 20 Business Days after the date that
notice of
the
Exchange Offer is mailed or otherwise transmitted to Holders (or
longer
if
required by applicable law);
(3) 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
Exchange Offer remains open; and
<PAGE>
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(4) otherwise comply in all material respects with all
applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and
the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and
not
validly withdrawn pursuant to the Exchange Offer and the Private
Exchange,
if
any;
(2) deliver to the Trustee for cancellation all Registrable Notes
so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each
Holder of Securities, Exchange Notes or Private Exchange Notes, as
the case
may
be, equal in principal amount to the Securities of such Holder
so
accepted for exchange; provided that, in the case of any Securities
held in
global form by a depositary, authentication and delivery to such
depositary
of
one or more replacement Securities 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 those set forth herein 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 that 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 Notes and the Private Exchange Notes 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 Notes
shall not be subject to the transfer restrictions set forth in the
Indenture.
(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 300 days
of the Issue Date, (iii) the Initial Purchasers or any holder of
Private
Exchange Notes so requests in writing to the Issuer at any time
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 Notes
on the date of the exchange that may be sold without restriction
under state and
federal securities laws (other
<PAGE>
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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
Issuer within 20
Business 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 Holders and the Trustee
written notice
thereto (the "Shelf Notice") and shall file a Shelf Registration
pursuant to
Section 3 hereto.
3.
Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section
2(c) hereto, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable
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 Notes
(the
"Initial Shelf Registration"). The Issuers shall use their
commercially reasonable efforts to file with the SEC the Initial
Shelf
Registration on or prior to the applicable Filing Date. The Initial
Shelf
Registration shall be on Form S-1 or another appropriate form
permitting
registration of such Registrable Notes 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 Notes and the Guarantees to be included in the
Initial
Shelf Registration or any Subsequent Shelf Registration (as defined
below).
The Issuers shall use their commercially reasonable efforts to
cause
the
Shelf Registration to be declared effective under the Securities
Act on
or
prior to the Effectiveness Date and, subject to Section 3(d), to
keep
the
Initial Shelf Registration continuously effective under the
Securities
Act
until the date that is two years from the Issue Date or such
shorter
period ending when all Registrable Notes cease to be Registrable
Notes, or
all
Registrable Notes 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 (as
may be
extended pursuant to the last paragraph of Section 5 hereto,
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 and shall be subject to reduction to the extent
that the
applicable provisions of Rule 144(k) are amended or revised to
reduce the
two
year holding period set forth therein.
(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
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of
all of the Notes registered thereunder), the Issuers shall use
their
commercially reasonable efforts to obtain the prompt withdrawal of
any
order suspending the effectiveness thereof, and in any event shall
within
45
days of such cessation of effectiveness amend such Shelf
Registration
Statement in a manner to obtain the withdrawal of the order
suspending the
effectiveness thereof, or file an additional Shelf Registration
Statement
pursuant to Rule 415 covering all of the Registrable Notes 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
commercially reasonable 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 Notes (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 by any underwriter of such Registrable Notes
with
respect to the information included therein with respect to
such
underwriter.
(d) Blackout Period. Notwithstanding anything to the contrary in
this
Agreement, the Issuer, upon notice to the Holders of Registrable
Notes, may
suspend the use of the Prospectus included in any Shelf
Registration
Statement in the event that and for a period of time (a "Blackout
Period")
not
to exceed an aggregate of 80 days in any twelve-month period if (1)
the
Board of Directors or managers, as applicable, of the Buyer-Parent
of the
Issuer determines, in good faith, that the disclosure of an
event,
occurrence or other item at such time could reasonably be expected
to have
a
material adverse effect on the business, operations or prospects of
the
Issuer or (2) the disclosure otherwise relates to a material
business
transaction that has not been publicly disclosed and the Board of
Directors
or
managers, as applicable, of the Buyer-Parent or the Issuer
determines,
in
good faith, that any such disclosure would jeopardize the success
of
such
transaction or that disclosure of the transaction is prohibited
pursuant to the terms thereto; provided that, upon the termination
of such
Blackout Period, the Issuer promptly shall notify the Holders
of
Registrable Notes that such Blackout Period has been
terminated.
<PAGE>
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4.
Additional Interest
(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 hereto 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") under the circumstances and to the extent set forth
below (each of
which shall be given independent effect):
(i) if (A) the Initial Shelf Registration has not been filed on
or
prior to the Filing Date applicable thereto or (B) notwithstanding
that the
Issuers have consummated or will consummate the Exchange Offer, the
Issuers
are
required to file a Shelf Registration and such Shelf Registration
is
not
filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional
Interest shall
accrue on the principal amount of, and be paid to the registered
Holders
of,
the Registrable Notes then outstanding and affected thereby at a
rate
of
0.25% per annum for the first 90 days immediately following
such
applicable Filing Date, and such Additional Interest rate shall
increase by
an
additional 0.25% per annum at the beginning of each subsequent
90-day
period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor
the
Initial Shelf Registration is declared effective by the SEC on or
prior to
the
Effectiveness Date applicable thereto or (B) notwithstanding that
the
Issuers have consummated or will consummate the Exchange Offer, the
Issuers
are
required to file a Shelf Registration and such Shelf Registration
is
not
declared effective by the SEC on or prior to the Effectiveness
Date
applicable to such Shelf Registration, then, commencing on the day
after
such
Effectiveness Date, Additional Interest shall accrue on the
principal
amount of, and be paid to the registered Holders of, the
Registrable Notes
then
outstanding and affected thereby at a rate of 0.25% per annum for
the
first 90 days immediately following the day after such
Effectiveness Date,
and
such Additional Interest rate shall increase by an additional 0.25%
per
annum at the beginning of each subsequent 90-day period; or
(iii)if (A) the Issuers have not exchanged Exchange Notes for
all
Notes validly tendered in accordance with the terms of the Exchange
Offer
on
or prior to the 300th day after the Issue Date or (B) 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
during any Blackout Period relating to such Shelf Registration),
then
Additional Interest shall accrue on the principal amount of, and be
paid to
the
registered Holders of, the Registrable Notes then outstanding
and
affected thereby at a rate of 0.25% per annum for the first 90
days
commencing on the (x) 301st day after the Issue Date, in the case
of (A)
above, or (y) the day such Shelf
<PAGE>
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Registration ceases to be effective in the case of (B) above, and
such
Additional Interest rate shall increase by an additional 0.25% per
annum at
the
beginning of each such subsequent 90-day period;
provided, however, that (1) the Additional Interest rate on the
Notes may not
accrue under more than one of the foregoing clauses (i) - (iii) at
any one time
and at no time shall the aggregate amount of additional interest
accruing exceed
in the aggregate 1.00% per annum and (2) Additional Interest shall
not accrue
under clause (iii)(B) above during the continuation of a Blackout
Period;
provided, further, however, that (1) upon the filing of the
applicable Exchange
Offer Registration Statement or the applicable Shelf Registration
as required
hereunder (in the case of clause (i) above of this Section 4), (2)
upon the
effectiveness of the Exchange Offer Registration Statement or the
applicable
Shelf Registration Statement as required hereunder (in the case of
clause (ii)
of this Section 4), or (3) upon the exchange of the Exchange Notes
for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or
upon the
effectiveness of the applicable Shelf Registration Statement that
had ceased to
remain effective (in the case of (iii)(B) 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 thereto), as the case may be,
shall cease to
accrue.
(b) The Issuers shall notify the Trustee within two Business
Days
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)(i), (a)(ii) or (a)(iii) of
this Section
4 will be payable in cash semiannually on each June 1 and December
1 (to the
holders of record of the affected Registrable Notes on the May 15
and November
15 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 multiplying the
applicable Additional
Interest rate by the principal amount of the affected Registrable
Notes,
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. No Additional Interest shall accrue with respect to Notes
that are not
Registrable Notes.
(c) The parties hereto agree that the Additional Interest provided
for
in this Section 4 constitutes the sole damages that will be
suffered by Holders
of affected Registrable Notes by reason of the occurrence of any of
the events
described in Section 4(a)(i)-(iii) hereto.
5.
Registration Procedures
In connection with the filing of any Registration Statement
pursuant
to Section 2 or 3 hereto, 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 thereto,
<PAGE>
-13-
and pursuant thereto and in connection with any Registration
Statement filed by
the Issuers hereunder each of the Issuers shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Section 2 or 3 hereto, and
use
their commercially reasonable 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
hereto
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement
filed pursuant to Section 2 hereto is required to be delivered
under the
Securities Act by any Participating Broker-Dealer who seeks to
sell
Exchange Notes during the Applicable Period relating thereto from
whom any
Issuer has received written notice no fewer than five Business Days
prior
to
the filing of such Registration Statement 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 the Holders of
the
Registrable Notes covered by such Registration Statement (with
respect to a
Registration Statement filed pursuant to Section 3 hereto) 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, 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 two 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 Notes covered by such Registration
Statement,
their counsel, or the managing underwriters, if any, shall
reasonably
object on a timely basis; provided that no Additional Interest
shall be
payable to any Holder of affected Registrable Notes in such event
to the
extent that the obligation to pay Additional Interest results from,
or
cannot be terminated as a result of, such objection by such
Holders.
(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
