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EXHIBIT 10.1
Execution Version
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 23, 2005
BY AND AMONG
CORRECTIONS CORPORATION OF AMERICA
AS ISSUER
CCA INTERNATIONAL, INC.
CCA OF TENNESSEE, LLC
CCA WESTERN PROPERTIES, INC.
PRISON REALTY MANAGEMENT, INC.
TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC.
CCA PROPERTIES OF AMERICA, LLC
CCA PROPERTIES OF ARIZONA, LLC
CCA PROPERTIES OF TENNESSEE, LLC
TRANSCOR AMERICA, LLC
CCA PROPERTIES OF TEXAS, L.P.
AS THE GUARANTORS
AND
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
SG AMERICAS SECURITIES, LLC
AVONDALE PARTNERS
BB&T CAPITAL MARKETS, A DIVISION OF SCOTT &
STRINGFELLOW, INC.
FIRST ANALYSIS SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
MORGAN JOSEPH & CO. INC.
UTENDAHL CAPITAL PARTNERS
as the Initial Purchasers
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This Registration Rights Agreement (this "AGREEMENT") is made
and
entered into as of March 23, 2005, by and among Corrections
Corporation of
America, a Maryland corporation (the "COMPANY"), the
subsidiaries listed on
Schedule A hereto (the "GUARANTORS"), and Lehman Brothers Inc.,
J.P. Morgan
Securities Inc., Banc of America Securities LLC, Wachovia
Capital Markets, LLC,
SG Americas Securities, LLC, Avondale Partners, BB&T Capital
Markets, a division
of Scott & Stringfellow, Inc., First Analysis Securities
Corporation, Jefferies
& Company, Inc., Morgan Joseph & Co. Inc., Utendahl
Capital Partners (each an
"INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom
has agreed to purchase the Company's 6 1/4% Senior Notes due
2013 (the "NOTES")
pursuant to the Purchase Agreement (as defined below).
This Agreement is entered into pursuant to the Purchase
Agreement,
dated March 8, 2005 (the "PURCHASE AGREEMENT"), by and among the
Company, the
Guarantors and the Initial Purchasers. In order to induce the
Initial Purchasers
to purchase the Notes, the Company and the Guarantors have
agreed to provide the
registration rights set forth in this Agreement. The execution
and delivery of
this Agreement is a condition to the obligations of the Initial
Purchasers set
forth in Section 7 of the Purchase Agreement. Capitalized terms
used herein and
not otherwise defined shall have the meanings assigned to them
in the Indenture,
dated as of March 23, 2005, by and among the Company, the
Guarantors and U.S.
Bank National Association, as Trustee, relating to the Notes and
the Exchange
Notes, and as further modified and/or supplemented from time to
time (the
"INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated"
for
purposes of this Agreement upon the occurrence of each of the
following: (a) the
filing and effectiveness under the Act of the Exchange Offer
Registration
Statement relating to the Exchange Notes to be issued in the
Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement
continuously
effective and the keeping of the Exchange Offer open for a
period not less than
the minimum period required pursuant to Section 3(b) hereof and
(c) the delivery
by the Company to the Registrar under the Indenture of Exchange
Notes in the
same aggregate principal
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amount as the aggregate principal amount of Notes validly
tendered by Holders
thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
EXCHANGE NOTES: The Company's 6 1/4% Senior Notes due 2013,
registered
under the Act, to be issued pursuant to the Indenture: (i) in
the Exchange Offer
or (ii) as contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of
a
principal amount of Exchange Notes (which shall be registered
pursuant to the
Exchange Offer Registration Statement) equal to the outstanding
principal amount
of Notes that are tendered by such Holders in connection with
such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement
relating to the Exchange Offer, including the related Prospectus
which forms a
part thereof.
EXEMPT RESALES: The transactions in which the Initial
Purchasers
propose to sell the Notes to certain "qualified institutional
buyers," as such
term is defined in Rule 144A under the Act, and in compliance
with Regulation S
under the Act.
HOLDER: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement
at the
time such Registration Statement is declared effective, as
amended or
supplemented by any prospectus supplement and by all other
amendments thereto,
including post-effective amendments, and all material
incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(e) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and
the Guarantors relating to (a) an offering of Exchange Notes and
related
Subsidiary Guarantees pursuant to an Exchange Offer or (b) the
registration for
resale of Transfer Restricted Securities pursuant to the Shelf
Registration
Statement, in each case (i) that is filed pursuant to the
provisions of this
Agreement and (ii) including the Prospectus included therein,
all amendments and
supplements thereto (including post-effective amendments) and
all exhibits and
material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4
hereof.
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SHELF EFFECTIVENESS DEADLINE: As defined in Section 4(a)
hereof.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SUSPENSION NOTICE: As defined in Section 6(e) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (i) Each Note and the
related
Subsidiary Guarantees, until the earliest to occur of (a) the
date on which such
Note is exchanged in the Exchange Offer for an Exchange Note
which is entitled
to be resold to the public by the Holder thereof without
complying with the
prospectus delivery requirements of the Act, (b) the date on
which such Note has
been disposed of in accordance with a Shelf Registration
Statement, (c) the date
on which such Note is distributed to the public pursuant to Rule
144 under the
Act or (d) the date on which such Note is sold in any other
manner that permits
the Company to remove the legend describing the transfer
restrictions and (ii)
each Exchange Note and the related Subsidiary Guarantees
acquired by a
Broker-Dealer in exchange for a Note acquired for its own
account as a result of
market making activities or other trading activities until the
date on which
such Exchange Note is disposed of by a Broker-Dealer pursuant to
the "Plan of
Distribution" contemplated by the Exchange Offer Registration
Statement
(including the delivery of the Prospectus contained
therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable
federal law or Commission policy (after the procedures set forth
in Section
6(a)(i) below have been complied with), the Company and the
Guarantors shall (i)
cause the Exchange Offer Registration Statement to be filed with
the Commission
not later than 90 days after the Closing Date (such date being
the "EXCHANGE
OFFER FILING DEADLINE"), (ii) use their commercially reasonable
efforts to have
such Exchange Offer Registration Statement declared effective by
the Commission
at the earliest possible time, but in no event later 180 days
after the Closing
Date (such date being the "EXCHANGE OFFER EFFECTIVENESS
DEADLINE"), (iii) in
connection with the foregoing, (A) file all pre-effective
amendments to such
Exchange Offer Registration Statement as may be necessary in
order to cause it
to become effective, (B) file, if applicable, a post-effective
amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A
under the Act and
(C) cause all necessary filings, if any, in connection with the
registration and
qualification of the Exchange Notes to be made under the Blue
Sky laws of such
jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and
(iv) unless the Exchange Offer would not be permitted by
applicable law or
Commission policy, promptly after the effectiveness of such
Exchange Offer
Registration Statement, commence and use their commercially
reasonable efforts
to Consummate the Exchange Offer in the time set forth in
Section 3(b). The
Exchange Offer shall be on the appropriate form permitting (i)
registration of
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the Exchange Notes to be offered in exchange for the Notes that
are Transfer
Restricted Securities and (ii) resales of Exchange Notes by
Broker-Dealers that
tendered into the Exchange Offer Notes that such Broker-Dealer
acquired for its
own account as a result of market making activities or other
trading activities
(other than Notes acquired directly from the Company or any of
its Affiliates)
as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their
respective
commercially reasonable efforts to cause the Exchange Offer
Registration
Statement to be effective continuously, and shall keep the
Exchange Offer open
for a period of not less than the minimum period required under
applicable
federal and state securities laws to Consummate the Exchange
Offer; provided,
however, that in no event shall such period be less than 20
business days. The
Company and the Guarantors shall cause the Exchange Offer to
comply with all
applicable federal and state securities laws. No securities
other than the
Exchange Notes shall be included in the Exchange Offer
Registration Statement.
The Company and the Guarantors shall use their respective
commercially
reasonable efforts to cause the Exchange Offer to be Consummated
on the earliest
practicable date after the Exchange Offer Registration Statement
has become
effective, but in no event later than within 30 days of the
Exchange Offer
Effectiveness Deadline (the "EXCHANGE OFFER CONSUMMATION
DEADLINE").
(c) The Company shall include a "Plan of Distribution" section
in the
Prospectus contained in the Exchange Offer Registration
Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted
Securities that
were acquired for the account of such Broker-Dealer as a result
of market-making
activities or other trading activities (other than Notes
acquired directly from
the Company or any Affiliate of the Company) may exchange such
Transfer
Restricted 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" shall not
name any such Broker-Dealer or disclose the amount of Transfer
Restricted
Securities held by any such Broker-Dealer, except to the extent
required by the
Commission as a result of a change in policy, rules or
regulations after the
date of this Agreement.
Because such Broker-Dealer may be deemed to be an "underwriter"
within
the meaning of the Act and must, therefore, deliver a prospectus
meeting the
requirements of the Act in connection with its initial sale of
any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the
Company and the
Guarantors shall permit the use of the Prospectus contained in
the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus
delivery requirement. To the extent necessary to ensure that the
prospectus
contained in the Exchange Offer Registration Statement is
available for sales of
Exchange Notes by Broker-Dealers, the Company and the Guarantors
agree to use
their respective commercially reasonable efforts to keep the
Exchange Offer
Registration Statement continuously effective, supplemented and
amended as
required by and subject to the provisions of Section 6(a) and
(c) hereof and in
conformity with the requirements of this Agreement, the Act and
the policies,
rules and regulations of the Commission as announced from time
to time, for a
period of 180 days from the date on which the Exchange Offer is
Consummated or
such shorter period as will terminate when all Transfer
Restricted Securities
covered by such Registration Statement have been sold pursuant
thereto. The
Company shall provide sufficient copies of the latest version
of
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such Prospectus to such Broker-Dealers, promptly upon request,
and in no event
later than two days after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by
applicable law or Commission policy (after the Company and the
Guarantors have
complied with the procedures set forth in Section 6(a)(i) below)
or (ii) if any
Holder of Transfer Restricted Securities shall notify the
Company prior to the
20th day following the Consummation of the Exchange Offer that
(A) such Holder
was prohibited by law or Commission policy from participating in
the Exchange
Offer or (B) such Holder may not resell the Exchange Notes
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 by such Holder or (C) such Holder is
a Broker-Dealer
and holds Notes acquired directly from the Company or any of its
Affiliates,
then the Company and the Guarantors shall:
(x) use their commercially reasonable efforts to cause to be
filed, on
or prior to 30 days after the earlier of (i) the date on which
the Company
determines that the Exchange Offer Registration Statement cannot
be filed
as a result of clause (a)(i) above and (ii) the date on which
the Company
receives the notice specified in clause (a)(ii) above (such
earlier date,
the "SHELF FILING DEADLINE,") a shelf registration statement
pursuant to
Rule 415 under the Act (which may be an amendment to the
Exchange Offer
Registration Statement (the "SHELF REGISTRATION STATEMENT")),
relating to
all Transfer Restricted Securities; and
(y) use their commercially reasonable efforts to cause such
Shelf
Registration Statement to become effective on or prior to 90
days after the
Shelf Filing Deadline (such 90th day, the "SHELF EFFECTIVENESS
DEADLINE").
If, after the Company has and the Guarantors have filed an
Exchange
Offer Registration Statement that satisfies the requirements of
Section 3(a)
above, the Company and the Guarantors are required to file and
make effective a
Shelf Registration Statement solely because the Exchange Offer
is not permitted
under applicable federal law or Commission policy (i.e., clause
(a)(i) above),
then the filing of the Exchange Offer Registration Statement
shall be deemed to
satisfy the requirements of clause (x) above; provided that, in
such event, the
Company and the Guarantors shall remain obligated to meet the
Shelf
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf
Registration
Statement is available for sales of Transfer Restricted
Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and
the other
securities required to be registered therein pursuant to Section
6(b)(ii)
hereof, the Company and the Guarantors shall use their
commercially reasonable
efforts to keep any Shelf Registration Statement required by
this Section 4(a)
continuously effective, supplemented and amended as required by
and subject to
the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure
that it is available for resale of Notes by the Holders of
Transfer Restricted
Securities entitled to the benefits of this Section 4(a) and to
ensure that it
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conforms with the requirements of this Agreement, the Act and
the policies,
rules and regulations of the Commission as announced from time
to time, for a
period of at least two years (as extended pursuant to Section
6(c)(i)) following
the Closing Date, or such shorter period as will terminate when
all Transfer
Restricted Securities covered by such Shelf Registration
Statement (i) have been
sold pursuant thereto or (ii) are no longer restricted
securities (as defined in
Rule 144 under the Act, or any successor rule thereof);
provided, however, that
the Company and the Guarantors shall not be obligated to keep
the Shelf
Registration Statement continuously effective to the extent set
forth above, or
to keep the prospectus included therein usable for offers and
sales of Transfer
Restricted Securities, if (i) the Company and the Guarantors
determine, in their
reasonable judgment, after seeking the advice of counsel, that
the continued
effectiveness of the Shelf Registration Statement or usability
of any prospectus
included therein would (x) require the disclosure of material
information, which
the Company has a bona fide business reason for preserving as
confidential, or
(y) interfere with any financing, acquisition, corporate
reorganization or other
material transaction or development involving the Company or any
of the
Guarantors or the contemplated timing thereof, and (ii) the
Company promptly
thereafter complies with the requirements of Section 6(e)
hereof, if applicable.
The number of days of any actual suspension period shall be
added on to the end
of the two year period specified above. Any such period during
which the Company
is excused from keeping the Shelf Registration Statement
effective in the
prospectus included therein usable for offers and sales of
Exchange Notes is
referred to herein as a "suspension period". A suspension period
shall commence
on and include the date that the Company gives notice that the
Shelf
Registration Statement is no longer effective or the prospectus
included therein
is no longer usable for offers and sales of Exchange Notes and
shall end on the
earlier to occur of (1) the date on which each seller of
Exchange Notes covered
by the Shelf Registration Statement either receives the copies
of the
supplemented or amended prospectus contemplated by Section 6(e)
hereof or is
advised in writing by the Company that the use of the prospectus
may be resumed,
and (2) the occurrence of a Suspension Period Limit (as defined
below). There
shall be no more than two (2) Suspension Periods in any twelve
month period, the
aggregate number of days of such Suspension Periods shall not
exceed 90 days in
such twelve month period and no Suspension Period shall exceed
60 days. The
Company shall be deemed not to have used their commercially
reasonable efforts
to keep the Shelf Registration Statement effective during the
requisite period
if they voluntarily take any action (other than an action
permitted by this
Section 4(a)) that would result in Holders of Transfer
Restricted
Securities/Exchange Notes covered thereby not being able to
offer and sell such
securities during that period, unless such action is required by
applicable law.
(b) Provision by Holders of Certain Information in Connection
with the
Shelf Registration Statement. No Holder of Transfer Restricted
Securities may
include any of its Transfer Restricted Securities in any Shelf
Registration
Statement pursuant to this Agreement unless and until such
Holder furnishes to
the Company in writing, within 20 days after receipt of a
request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as
applicable, of
the Act or such other information as the Company may reasonably
request for use
in connection with any Shelf Registration Statement or
Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted
Securities shall
be entitled to liquidated damages pursuant to Section 5 hereof
unless and until
such Holder shall have provided all such information. By its
acceptance of
Transfer Restricted Securities, each Holder agrees to promptly
furnish all
additional information required to be disclosed in order to make
the information
previously furnished to the Company by such Holder not
materially misleading.
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SECTION 5. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement required by this
Agreement is
not filed with the Commission on or prior to the Shelf Filing
Deadline, (ii) the
Shelf Registration Statement has not been declared effective by
the Commission
on or prior to the Shelf Effectiveness Deadline, (iii) the
Exchange Offer has
not been Consummated on or prior to the Exchange Offer
Consummation Deadline or
(iv) any Registration Statement required by this Agreement is
filed and declared
effective but shall thereafter cease to be effective or fail to
be usable for
its intended purpose, except as provided herein, without being
succeeded within
two business days by a post-effective amendment to such
Registration Statement
that cures such failure and that is itself declared effective
within five
business days of filing such post-effective amendment to such
Registration
Statement (each such event referred to in clauses (i) through
(iv), a
"REGISTRATION DEFAULT"), then the Company and the Guarantors
hereby jointly and
severally agree to pay to each Holder of Transfer Restricted
Securities affected
thereby liquidated damages in an amount equal to $.05 per week
per $1,000 in
principal amount of Transfer Restricted Securities held by such
Holder for each
week or portion thereof that the Registration Default continues
for the first
90-day period immediately following the occurrence of such
Registration Default.
The amount of the liquidated damages shall increase by an
additional $.05 per
week per $1,000 in principal amount of Transfer Restricted
Securities 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 in principal amount of Transfer Restricted Securities;
provided that the
Company and the Guarantors shall in no event be required to pay
liquidated
damages for more than one Registration Default at any given
time.
Notwithstanding anything to the contrary set forth herein, (1)
upon filing of
the Shelf Registration Statement, in the case of (i) above, (2)
upon the
effectiveness of the Shelf Registration Statement, in the case
of (ii) above,
(3) upon Consummation of the Exchange Offer, in the case of
(iii) above, or (4)
upon the filing of a post-effective amendment to the
Registration Statement or
an additional Registration Statement that causes the Exchange
Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement) to again be
declared effective or made usable in the case of (iv) above, the
liquidated
damages payable with respect to the Transfer Restricted
Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall
cease.
All accrued liquidated damages shall be paid to the Holders
entitled
thereto in the manner provided for the payment of interest in
the Indenture, on
each Interest Payment Date, as more fully set forth in the
Indenture and the
Notes. Notwithstanding the fact that any securities for which
liquidated damages
are due cease to be Transfer Restricted Securities, all
obligations of the
Company and the Guarantors to pay liquidated damages with
respect to securities
shall survive until such time as such obligations with respect
to such
securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the
Exchange Offer, the Company and the Guarantors shall (x) comply
with all
applicable provisions of Section 6(c) below, (y) use their
respective
commercially reasonable efforts to effect such exchange and to
permit the resale
of Exchange Notes by any Broker-Dealer that tendered Notes in
the Exchange Offer
that such Broker-Dealer acquired for its own account as a result
of its
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market making activities or other trading activities (other than
Notes acquired
directly from the Company or any of its Affiliates) being sold
in accordance
with the intended method or methods of distribution thereof, and
(z) comply with
all of the following provisions:
(i) If, following the date hereof, there has been announced a
change
in applicable law or Commission policy with respect to exchange
offers such
as the Exchange Offer that in the reasonable opinion of counsel
to the
Company raises a question as to whether the Exchange Offer is
permitted by
applicable federal law, the Company and the Guarantors hereby
agree to seek
a no-action letter or other favorable decision from the
Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer
for such
Transfer Restricted Securities. The Company and the Guarantors
hereby agree
to pursue the issuance of such a decision to the Commission
staff level,
but shall not be required to take commercially unreasonable
action to
effect a change of Commission policy. In connection with the
foregoing, the
Company and the Guarantors hereby agree to take all such other
reasonable
actions as may be requested by the Commission or otherwise
required in
connection with the issuance of such decision, including without
limitation
(A) participating in telephonic conferences with the Commission
staff, (B)
delivering to the Commission staff an analysis prepared by
counsel to the
Company setting forth the legal bases, if any, upon which such
counsel has
concluded that such an Exchange Offer should be permitted and
(C)
diligently pursuing a resolution (which need not be favorable)
by the
Commission staff.
(ii) As a condition to its participation in the Exchange
Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted
Securities (including, without limitation, any Holder who is a
Broker
Dealer) shall furnish, upon the request of the Company, prior to
the
Consummation of the Exchange Offer, a written representation to
the Company
and the Guarantors (which may be contained in the letter of
transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect
that (A) it is not an Affiliate of the Company, (B) it is not
engaged in,
and does not intend to engage in, and has no arrangement or
understanding
with any person to participate in, a distribution of the
Exchange Notes to
be issued in the Exchange Offer and (C) it is acquiring the
Exchange Notes
in its ordinary course of business. In addition, all such
Holders of
Transfer Restricted Securities shall otherwise cooperate in the
Company's
preparations for the Exchange Offer. Each Holder using the
Exchange Offer
to participate in a distribution of the Exchange Notes will be
required to
acknowledge and agree that, if the resales are of Exchange Notes
obtained
by such Holder in exchange for Notes acquired directly from the
Company or
an Affiliate thereof, it (1) could not, under Commission policy
as in
effect on the date of this Agreement, rely on the position of
the
Commission enunciated in Morgan Stanley and Co., Inc. (available
June 5,
1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as
interpreted in the Commission's letter to Shearman &
Sterling dated July 2,
1993, and similar no-action letters (including, if applicable,
any
no-action letter obtained pursuant to clause (i) above), and (2)
must
comply with the registration and prospectus delivery
requirements of the
Act in connection with a secondary resale transaction and that
such a
secondary resale transaction must be covered by an effective
registration
statement containing the
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selling security holder information required by Item 507 or 508,
as
applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration
Statement, the Company and the Guarantors shall provide a
supplemental
letter to the Commission (A) stating that the Company and the
Guarantors
are registering the Exchange Offer in reliance on the position
of the
Commission enunciated in Exxon Capital Holdings Corporation
(available May
13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991)
as
interpreted in the Commission's letter to Shearman &
Sterling dated July 2,
1993, and, if applicable, any no-action letter obtained pursuant
to clause
(i) above, (B) including a representation that neither the
Company nor any
Guarantor has entered into any arrangement or understanding with
any person
to distribute the Exchange Notes to be received in the Exchange
Offer and
that, to the best of the Company's and each Guarantor's
information and
belief, each Holder participating in the Exchange Offer is
acquiring the
Exchange Notes in its ordinary course of business and has no
arrangement or
understanding with any Person to participate in the distribution
of the
Exchange Notes received in the Exchange Offer and (C) any other
undertaking
or representation required by the Commission as set forth in any
no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the
Shelf
Registration Statement, the Company and the Guarantors
shall:
(i) comply with all the provisions of Section 6(c) and 6(d)
below and
use their respective commercially reasonable efforts to effect
such
registration to permit the sale of the Transfer Restricted
Securities being
sold in accordance with the intended method or methods of
distribution
thereof (as indicated in the information furnished to the
Company pursuant
to Section 4(b) here
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