EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 23, 2004
Among
COOPER-STANDARD AUTOMOTIVE INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.,
LEHMAN BROTHERS INC.
GOLDMAN, SACHS & CO.
UBS SECURITIES LLC
BNP PARIBAS SECURITES CORP.
SCOTIA CAPITAL (USA) INC.
as Initial Purchasers
8 3/8% Senior Subordinated Notes due 2014
TABLE OF CONTENTS
Page
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1.
Definitions................................................................1
2. Exchange
Offer.............................................................5
3. Shelf
Registration.........................................................9
4.
Market-Making.............................................................11
5. Additional
Interest.......................................................15
6. Registration
Procedures...................................................16
7. Registration
Expenses.....................................................25
8. Indemnification and
Contribution..........................................26
9. Rules 144 and
144A........................................................30
10. Underwritten
Registrations................................................30
11.
Miscellaneous.............................................................30
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
dated as of
December 23, 2004, among COOPER-STANDARD AUTOMOTIVE INC., an Ohio
corporation
(the "Company"), CSA Acquisition Corp. ("Holdings"), the
subsidiaries of the
Company listed on the signature pages hereto (collectively, and
together with
Holdings and any entity that in the future executes a supplemental
indenture
pursuant to which such entity agrees to guarantee the Notes (as
hereinafter
defined), the "Guarantors," and together with the Company, the
"Issuers") and
DEUTSCHE BANK SECURITIES INC., LEHMAN BROTHERS INC., GOLDMAN, SACHS
& CO., UBS
SECURITIES LLC, BNP PARIBAS SECURITES CORP. and SCOTIA CAPITAL
(USA) INC. as
initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the
Purchase
Agreement by and between Holdings and the Initial Purchasers, dated
as of
December 16, 2004 (the "Purchase Agreement"), as amended by the
Joinder
Agreement, dated as of December 23, 2004, by and among the Issuers
which
provides for, among other things, the sale by the Company to the
Initial
Purchasers of $350,000,000 aggregate principal amount of the
Company's 8 3/8 %
Senior Subordinated Notes due 2014 (the "Notes") guaranteed on an
unsecured
senior subordinated basis by the Guarantors (the "Guarantees").
References
herein to the "Securities" refer to the Notes and the Guarantees
collectively.
In order to induce the Initial Purchasers (including the
Market-Maker) to enter
into the Purchase Agreement, the Issuers have agreed to provide the
registration
rights set forth in this Agreement for the benefit of the Initial
Purchasers and
any subsequent holder or holders of the Securities. The execution
and delivery
of this Agreement is a condition to the Initial Purchasers'
obligations under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have
the
following meanings:
Additional Interest: See Section 5(a) hereof.
Advice: See the last paragraph of Section 6 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a
day on which
commercial banking institutions in New York are authorized or
required by law to
be closed.
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Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to any Shelf
Registration Statement,
the 90th day after the Filing Date with respect thereto; provided,
however, that
if the Effectiveness Date would otherwise fall on a day that is not
a Business
Day, then the Effectiveness Date shall be the next succeeding
Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 5(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a)
hereof.
Exchange Securities: See Section 2(a) hereof.
Filing Date: The 90th day after the delivery of a Shelf
Notice as
required pursuant to Section 2(c) hereof; provided, however, that
if the Filing
Date would otherwise fall on a day that is not a Business Day, then
the Filing
Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Security or
Registrable
Securities.
Holdings: See the introductory paragraphs hereto.
Indenture: The Indenture, dated as of December 23, 2004,
by and among
the Company, the Guarantors, and Wilmington Trust Company, as
Trustee, pursuant
to which the Securities are being issued, as amended or
supplemented from time
to time in accordance with the terms thereof.
Information: See Section 6(o) hereof.
Initial Purchasers: See the introductory paragraphs
hereto.
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Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 6(o) hereof.
Issue Date: December 23, 2004, the date of original
issuance of the
Notes.
Issuers: See the introductory paragraphs hereto.
Market-Maker: See Section 4(a) hereof.
Market-Maker's Information: See Section 4(d) hereof.
Market-Making Registration: See Section 4(a)(i) hereof.
Market-Making Registration Statement: See Section 4(a)(i)
hereof.
NASD: See Section 6(s) hereof.
New Guarantees: See Section 2(a) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 8(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited
liability company, joint stock company, trust, unincorporated
association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement
(including, without limitation, any prospectus subject to
completion and a
prospectus that includes any information previously omitted from a
prospectus
filed as part of an effective registration statement in reliance
upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule
434 under the
Securities Act), as amended or supplemented by any prospectus
supplement, and
all other amendments and supplements to the Prospectus, including
post-effective
amendments, and all material incorporated by reference or deemed to
be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs
hereof.
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Records: See Section 6(o) hereof.
Registration Default: See Section 5(a) hereof.
Registrable Securities: Each Security upon its original
issuance and
at all times subsequent thereto, each Exchange Security as to which
Section
2(c)(iv) hereof is applicable upon original issuance and at all
times subsequent
thereto and each Private Exchange Note (and the related Guarantees)
upon
original issuance thereof and at all times subsequent thereto,
until, in each
case, the earliest to occur of (i) a Registration Statement (other
than, with
respect to any Exchange Securities as to which Section 2(c)(iv)
hereof is
applicable, the Exchange Offer Registration Statement) covering
such Security,
Exchange Security or Private Exchange Note (and the related
Guarantees) has been
declared effective by the SEC and such Security, Exchange Security
or such
Private Exchange Note (and the related Guarantees), as the case may
be, has been
disposed of in accordance with such effective Registration
Statement, (ii) such
Security has been exchanged pursuant to the Exchange Offer for an
Exchange
Security or Exchange Securities that may be resold without
restriction under
state and federal securities laws, (iii) such Security, Exchange
Security or
Private Exchange Note (and the related Guarantees), as the case may
be, ceases
to be outstanding for purposes of the Indenture or (iv) such
Security, Exchange
Security or Private Exchange Note (and the related Guarantees), as
the case may
be, may be resold without restriction pursuant to Rule 144(k) (as
amended or
replaced) under the Securities Act.
Registration Statement: Any registration statement of the
Company that
covers any of the Securities, the Exchange Securities or the
Private Exchange
Notes (and the related Guarantees) filed with the SEC under the
Securities Act,
including, in each case, the Prospectus, amendments and supplements
to such
registration statement, including post-effective amendments, all
exhibits, and
all material incorporated by reference or deemed to be incorporated
by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
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Securities Act: The Securities Act of 1933, as amended,
and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement
relating to a
Shelf Registration.
Shelf Suspension Period: See Section 3(a) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee
(if any)
under any indenture governing the Securities, Exchange Securities
and Private
Exchange Notes (and the related Guarantees).
Underwritten registration or underwritten offering: A
registration in
which securities of the Company is 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 use their
reasonable best efforts to file with the SEC a Registration
Statement (the
"Exchange Offer Registration Statement") on an appropriate
registration form
with respect to a registered offer (the "Exchange Offer") to
exchange any and
all of the Registrable Securities for a like aggregate principal
amount of debt
securities of the Company (the "Exchange Notes"), guaranteed on an
unsecured
senior subordinated basis by the Guarantors (the "New Guarantees"
and together
with the Exchange Notes, the "Exchange Securities"), that are
identical in all
material respects to the Notes, except that (i) the Exchange Notes
shall contain
no restrictive legend thereon, (ii) interest thereon shall accrue
from the last
date on which interest was paid on the Notes or, if no such
interest has been
paid, from the Issue Date and (iii) which are entitled to the
benefits of the
Indenture or a trust indenture which is identical in all material
respects to
the Indenture (other
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than such changes to the Indenture or any such identical trust
indenture as are
necessary to comply with the TIA) and which, in either case, has
been qualified
under the TIA. The Exchange Offer shall comply with all applicable
tender offer
rules and regulations under the Exchange Act and other applicable
laws. The
Issuers shall use their reasonable best efforts to (x) prepare and
file with the
SEC the Exchange Offer Registration Statement with respect to the
Exchange
Offer; (y) keep the Exchange Offer open for at least 20 Business
days (or longer
if required by applicable law) after the date that notice of the
Exchange Offer
is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the
270th day following the Issue Date.
Each Holder (including, without limitation, each
Participating
Broker-Dealer) who participates in the Exchange Offer as a
condition to
participation in the Exchange Offer will be required to represent
to the Issuers
in writing (which may be contained in the applicable letter of
transmittal)
that: (i) any Exchange Securities acquired in exchange for
Registrable
Securities tendered are being acquired in the ordinary course of
business of the
Person receiving such Exchange Securities, whether or not such
recipient is such
Holder itself; (ii) at the time of the commencement or consummation
of the
Exchange Offer neither such Holder nor, to the actual knowledge of
such Holder,
any other Person receiving Exchange Securities from such Holder has
an
arrangement or understanding with any Person to participate in the
distribution
(within the meaning of the Securities Act) of the Exchange
Securities in
violation of the provisions of the Securities Act; (iii) neither
the Holder nor,
to the actual knowledge of such Holder, any other Person receiving
Exchange
Securities from such Holder is an "affiliate" (as defined in Rule
405) of the
Company or, if it is an affiliate of the Company, 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 6 hereof in order
to have
their Securities included in the Shelf Registration Statement and
benefit from
the provisions regarding Additional Interest in Section 5 hereof;
(iv) if such
Holder is not a broker-dealer, neither such Holder nor, to the
actual knowledge
of such Holder, any other Person receiving Exchange Securities from
such Holder
is engaging in or intends to engage in a distribution of the
Exchange
Securities; and (v) if such Holder is a Participating
Broker-Dealer, such Holder
has acquired the Registrable Securities for its own account in
exchange for
Securities that were acquired as a result of market-making
activities or other
trading activities and that it will comply with the applicable
provisions of the
Securities Act (including, but not limited to, the prospectus
delivery
requirements thereunder).
Upon consummation of the Exchange Offer in accordance
with this
Section 2, the provisions of this Agreement shall continue to
apply, mutatis
mutandis, solely with respect to Registrable Securities that are
Private
Exchange Notes (and the related Guarantees), Exchange Securities as
to which
Section 2(c)(iv) is applicable and Exchange Securities held by the
Market-Maker,
Participating Broker-Dealers, and the Company shall have no further
obligation
to register Registrable Securities (other than Private Exchange
Notes (and the
related
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Guarantees) and Exchange Securities as to which clause 2(c)(iv)
hereof applies)
pursuant to Section 3 hereof.
No securities other than the Exchange Securities and the
Company's 7 %
Senior Notes due 2012 (and the related guaranties) 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,"
which shall contain a summary statement of the positions taken or
policies made
by the staff of the SEC with respect to the potential "underwriter"
status of
any broker-dealer that is the "beneficial owner" (as defined in
Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer
in the
Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or
policies have been publicly disseminated by the staff of the SEC or
such
positions or policies represent the prevailing views of the staff
of the SEC.
Such "Plan of Distribution" section shall also expressly permit, to
the extent
permitted by applicable policies and regulations of the SEC, the
use of the
Prospectus by all Participating Broker-Dealers, and include a
statement
describing the means by which Participating Broker-Dealers may
resell the
Exchange Securities in compliance with the Securities Act.
The Issuers shall use their reasonable best efforts to
keep the
Exchange Offer Registration Statement effective and to amend and
supplement the
Prospectus contained therein in order to permit such Prospectus to
be lawfully
delivered by all Persons subject to the prospectus delivery
requirements of the
Securities Act for such period of time as is necessary to comply
with applicable
law in connection with any resale of the Exchange Securities;
provided, however,
that such period shall not be required to exceed 90 days or such
longer period
if extended pursuant to the last paragraph of Section 6 hereof (the
"Applicable
Period").
If, prior to consummation of the Exchange Offer, the
Initial
Purchasers hold any Notes acquired by them that have the status of
an unsold
allotment in the initial distribution, the 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 Company, guaranteed by
the
Guarantors, that are identical in all material respects to the
Exchange Notes
except for the placement of a restrictive legend on such Private
Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same
indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes
if permitted
by the CUSIP Service Bureau.
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In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record
entitled to
participate in the Exchange Offer a copy of the Prospectus
forming part of
the Exchange Offer Registration Statement, together with an
appropriate
letter of transmittal and related documents;
(2) use their respective reasonable best 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 to Holders (or longer if required
by
applicable law);
(3) utilize the services of a depositary for the Exchange
Offer with
an address in the Borough of Manhattan, The City of New York
or in
Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time
prior to the
close of business, New York time, on the last Business Day on
which the
Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
laws, rules and
regulations applicable to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer and any
Private Exchange, the Issuers shall:
(1) accept for exchange all Registrable Securities
validly tendered
and not validly withdrawn pursuant to the Exchange Offer and
any Private
Exchange;
(2) deliver to the Trustee for cancellation all
Registrable Securities
so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may
be, equal in principal amount to the Notes of such Holder so
accepted for
exchange; provided that, in the case of any Notes held in
global form by a
depositary, authentication and delivery to such depositary of
one or more
replacement Notes in global form in an equivalent principal
amount thereto
for the account of such Holders in accordance with the
Indenture shall
satisfy such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be
subject to
any conditions, other than that (i) the Exchange Offer or Private
Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or
proceeding shall have
been instituted or threatened in any court or by any governmen-
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tal agency which might materially impair the ability of the Issuers
to proceed
with the Exchange Offer or the Private Exchange, and no material
adverse
development shall have occurred in any existing action or
proceeding with
respect to the Issuers; and (iii) all governmental approvals shall
have been
obtained, which approvals the Issuers deem necessary for the
consummation of the
Exchange Offer or Private Exchange.
The Exchange Securities and the Private Exchange Notes
(and related
guarantees) shall be issued under (i) the Indenture or (ii) an
indenture
identical in all material respects to the Indenture and which, in
either case,
has been qualified under the TIA or is exempt from such
qualification and shall
provide that the Exchange Securities shall not be subject to the
transfer
restrictions set forth in the Indenture. The Indenture or such
indenture shall
provide that the Exchange Notes, the Private Exchange Notes and the
Notes shall
vote and consent together on all matters as one class and that none
of the
Exchange Notes, the Private Exchange Notes or the Notes will have
the right to
vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing
interpretations of the staff of the SEC, the Issuers are not
permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated
within 270 days
of the Issue Date, (iii) any holder of Private Exchange Notes so
requests in
writing to the Company at any time within 30 days after the
consummation of the
Exchange Offer, or (iv) in the case of any Holder that participates
in the
Exchange Offer, such Holder does not receive Exchange Securities on
the date of
the exchange that may be sold without restriction under state and
federal
securities laws (other than due solely to the status of such Holder
as an
affiliate of the Company within the meaning of the Securities Act)
and so
notifies the Company within 30 days after such Holder first becomes
aware of
such restrictions, in the case of each of clauses (i) to and
including (iv) of
this sentence, then the Issuers shall promptly deliver to the
Holders and the
Trustee written notice thereof (the "Shelf Notice") and shall file
a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as
contemplated by Section
2(c) hereof, then:
(a) Shelf Registration. The Issuers shall promptly file
with the SEC a
Registration Statement for an offering to be made on a continuous
basis pursuant
to Rule 415 covering all of the Registrable Securities (the
"Initial Shelf
Registration"). The Issuers shall use their reasonable best efforts
to file with
the SEC the Initial Shelf Registration on or prior to the Filing
Date. The
Initial Shelf Registration shall be on Form S-1 or another
appropriate form
permitting registration of such Registrable Securities for resale
by Holders in
the manner or manners designated by them (including, without
limitation, one or
more underwritten offerings). The Issuers shall not permit any
securities other
than the Registrable Securities and the Guarantees and the
Company's 7% Senior
Notes due 2012 and the related guarantees to be
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included in the Initial Shelf Registration or any Subsequent Shelf
Registration
(as defined below).
The Issuers shall use their respective reasonable best
efforts to
cause the Shelf Registration to be declared effective under the
Securities Act
on or prior to the Effectiveness Date and to keep the Initial Shelf
Registration
continuously effective under the Securities Act until the earliest
of (i) the
date that is two years from the Issue Date (ii) such shorter period
ending when
all Registrable Securities covered by the Initial Shelf
Registration have been
sold in the manner set forth and as contemplated in the Initial
Shelf
Registration or, if applicable, a Subsequent Shelf Registration or
(iii) the
date upon which all Registrable Securities become eligible for
resale without
regard to volume, manner of sale or other restrictions contained in
Rule (144(k)
(the "Effectiveness Period"); provided, however, that the
Effectiveness Period
in respect of the Initial Shelf Registration shall be extended to
the extent
required to permit dealers to comply with the applicable prospectus
delivery
requirements of Rule 174 under the Securities Act and as otherwise
provided
herein. Notwithstanding anything to the contrary in this Agreement,
at any time,
the Company may delay the filing of any Initial Shelf Registration
Statement or
delay or suspend the effectiveness thereof, for a reasonable period
of time, but
not in excess of an aggregate of 60 days in any calendar year (a
"Shelf
Suspension Period"), if the Board of Directors of the Company
determines
reasonably and in good faith that the filing of any such Initial
Shelf
Registration Statement or the continuing effectiveness thereof
would require the
disclosure of non-public material information that, in the
reasonable judgment
of the Board of Directors of the Company, would be detrimental to
the Company if
so disclosed or would otherwise materially adversely affect a
financing,
acquisition, disposition, merger or other material transaction.
(b) Withdrawal of Stop Orders; Subsequent Shelf
Registrations. If the
Initial Shelf Registration or any Subsequent Shelf Registration
ceases to be
effective for any reason at any time during the Effectiveness
Period (other than
because of the sale of all of the Securities registered
thereunder), the Issuers
shall use their respective reasonable best efforts to obtain the
prompt
withdrawal of any order suspending the effectiveness thereof, and
in any event
shall file an additional Shelf Registration Statement pursuant to
Rule 415
covering all of the Registrable Securities covered by and not sold
under the
Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed,
the Issuers shall use their respective reasonable best efforts to
cause the
Subsequent Shelf Registration to be declared effective under the
Securities Act
as soon as practicable after such filing and to keep such
subsequent Shelf
Registration continuously effective for a period equal to the
number of days in
the Effectiveness Period less the aggregate number of days during
which the
Initial Shelf Registration or any Subsequent Shelf Registration was
previously
continuously effective. As used herein the term "Shelf
Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
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(c) Supplements and Amendments. The Issuers shall
promptly supplement
and amend the Shelf Registration if required by the rules,
regulations or
instructions applicable to the registration form used for such
Shelf
Registration, if required by the Securities Act, or if reasonably
requested by
the Holders of a majority in aggregate principal amount of the
Registrable
Securities (or their counsel) covered by such Registration
Statement with
respect to the information included therein with respect to one or
more of such
Holders, or by any underwriter of such Registrable Securities with
respect to
the information included therein with respect to such underwriter.
4. Market-Making
(a) For the sole benefit of Goldman, Sachs & Co. (in
such capacity,
the "Market-Maker") or any of its affiliates (as defined in the
rules and
regulations of the SEC), so long as (x) any of the Registrable
Securities or
Exchange Securities are outstanding and (y) as the Market-Maker or
any of its
affiliates owns any equity securities of the Issuers or any of
their affiliates
and proposes to make a market in the Registrable Securities or
Exchange
Securities as part of its business in the ordinary course, the
following
provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuers shall file under the Securities Act a
registration
statement (which may be the Exchange Offer Registration
Statement or the
Shelf Registration Statement if permitted by the rules and
regulations of
the SEC), in a form approved by the Market-Maker (such filing,
the
"Market-Making Registration," and such registration statement,
the
"Market-Making Registration Statement"). The Issuers agree to
use their
reasonable best efforts to cause the Market-Making
Registration Statement
to be declared effective on or prior to (i) the date the
Exchange Offer is
completed pursuant to Section 2(a) above or (ii) the date the
Registration
becomes or is declared effective pursuant to Section 3 above,
and to keep
such Market-Making Registration Statement continuously
effective for so
long as the Market-Maker may be required to deliver a
prospectus in
connection with transactions in the Securities or the Exchange
Securities,
as the case may be. In the event that the Market-Maker holds
Securities at
the time an Exchange Offer is to be conducted under Section
2(a) above, the
Issuers agree that the Market-Making Registration shall
provide for the
resale by the Market-Maker of such Securities and shall be
kept
continuously effective for so long as the Market-Maker may be
required to
deliver a prospectus in connection with the sale of such
Securities. The
Issuers further agree to supplement or make amendments to the
Market-Making
Registration Statement, as and when required by the rules,
regulations or
instructions applicable to the registration form used by the
Company for
such Market-Making Registration Statement, and the Company
agrees to
furnish to the Market-Maker copies of any such supplement or
amendment
prior to its being used or promptly following its filing with
the SEC.
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(ii) Notwithstanding the foregoing, the Company may
suspend the
offering and sale under the Market-Making Registration
Statement for a
period or periods the Board of Directors of the Company
reasonably
determines to be advisable for valid business reasons, but in
any event not
to exceed 120 days in each year during which the Market-Making
Registration
Statement is required to be effective and usable hereunder
(measured from
the Effective Time of the Market-Making Registration Statement
to
successive anniversaries thereof) if (A) (i) the Board of
Directors of the
Company determines in good faith that such action is in the
best interests
of the Company or (ii) the Market Making Registration
Statement, prospectus
or amendment or supplement thereto contains an untrue
statement of a
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, and (B) the Company notifies the
Market-Maker within
five days after such Board of Directors makes the relevant
determination
set forth in clause (A).
(iii) The Company shall notify the Market-Maker (A) when
any
post-effective amendment to the Market-Making Registration
Statement or any
amendment or supplement to the related prospectus has been
filed, and, with
respect to any post-effective amendment, when the same has
become
effective; (B) of any request by the SEC for any
post-effective amendment
to the Market-Making Registration Statement, any supplement or
amendment to
the related prospectus or for additional information; (C) the
issuance by
the SEC of any stop order suspending the effectiveness of the
Market-Making
Registration Statement or the initiation of any proceedings
for that
purpose; (D) of the receipt by the Company of any notification
with respect
to the suspension of the qualification of the Registrable
Securities or
Exchange Securities for sale in any jurisdiction or the
initiation or
threatening of any proceedings for such purpose; and (E) of
the happening
of any event that makes any statement made in the
Market-Making
Registration Statement, the related prospectus or any
amendment or
supplement thereto untrue or that requires the making of any
changes in the
Market-Making Registration Statement, such prospectus or any
amendment or
supplement thereto, in order to make the statements therein
not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B)
through (E)
occurs during the period for which the Issuers are required to
maintain an
effective Market-Making Registration Statement, the Issuers
shall promptly
prepare and file with the SEC a post-effective amendment to
the
Market-Making Registration Statement or a supplement to the
related
prospectus or file any other required document so that the
prospectus will
not include an untrue statement of a material fact or omit to
state a
material fact necessary in order to make the statements
therein, in the
light of the circumstances under which they were made, not
misleading.
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(v) In the event of the issuance of any stop order
suspending the
effectiveness of the Market-Making Registration Statement or
of any order
suspending the qualification of the Registrable Securities or
Exchange
Securities for sale in any jurisdiction, the Issuers shall use
promptly
their reasonable best efforts to obtain its withdrawal.
(vi) The Company shall furnish to the Market-Maker,
without charge,
(i) at least one conformed copy of the Market-Making
Registration Statement
and any post-effective amendment thereto; and (ii) as many
copies of the
related prospectus and any amendment or supplement thereto as
the
Market-Maker may reasonably request.
(vii) The Issuers shall consent to the use of the
prospectus contained
in the Market-Making Registration Statement or any amendment
or supplement
thereto by the Market-Maker in connection with its
market-making
activities.
(viii) Notwithstanding the foregoing provisions of this
Section 4, the
Issuers may for valid business reasons, including without
limitation, a
potential acquisition, divestiture of assets or other material
corporate
transaction, issue a notice that the Market-Making
Registration Statement
is no longer effective or the prospectus included therein is
no longer
usable for offers and sales of Registrable Securities or
Exchange
Securities and may issue any notice suspending use of the
Market-Making
Registration Statement required under applicable securities
laws to be
issued for so long as valid business reasons exist and the
Company shall
not be obligated to amend or supplement the Market-Making
Registration
Statement or the prospectus included therein until it
reasonably deems
appropriate. The Market-Maker agrees that upon receipt of any
notice from
the Company pursuant to this Section 4(a)(viii), it will
discontinue use of
the Market-Making Registration Statement until receipt of
copies of the
supplemented or amended prospectus relating thereto until
advised in
writing by the Company that the use of the Market-Making
Registration
Statement may be resumed.
(b) In connection with the Market-Making Registration,
the Company
shall (i) make reasonably available for inspection by a
representative of, and
counsel acting for, the Market-Maker all relevant financial and
other records,
pertinent corporate documents and properties of the Company and its
subsidiaries
and (ii) use its reasonable best efforts to have its officers,
directors,
employees, accountants and counsel supply all relevant information
reasonably
requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of the Market-Making
Registration
Statement, the Issuers will use their reasonable best efforts to
register or
qualify such Registrable Securities or Exchange Securities for
offer and sale
under the securities or blue sky laws of such jurisdictions as the
Market-Maker
reasonably requests in writing and do any and all other acts or
things necessary
or advisable to enable the offer and sale in such jurisdictions of
the
Registrable Securities or Exchange Securities covered by the
Market-Making
Registration
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Statement; provided that the Issuers will not be required to
qualify generally
to do business in any jurisdiction where they are not then so
qualified or to
take any action which would subject them to general service of
process or to
taxation in any such jurisdiction where they are not then so
subject.
(d) The Company represents that the Market-Making
Registration
Statement, any post-effective amendments thereto, any amendments or
supplements
to the related prospectus and any documents filed by them under the
Exchange Act
will, when they become effective or are filed with the SEC, as the
case may be,
conform in all respects to the requirements of the Securities Act
and the
Exchange Act and the rules and regulations of the SEC thereunder
and will not,
as of the effective date of such Market-Making Registration
Statement or
post-effective amendments and as of the filing date of amendments
or supplements
to such prospectus or filings under the Exchange Act, 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 in light
of the
circumstances under which they were made not misleading; provided
that no
representation or warranty is made as to information contained in
or omitted
from the Market-Making Registration Statement or the related
prospectus in
reliance upon and in conformity with written information furnished
to the
Company by the Market-Maker specifically for inclusion therein,
which
information the parties hereto agree will be limited to the
statements
concerning the Market-Making activities of the Market-Maker to be
set forth on
the cover page and in the "Plan of Distribution" section of the
prospectus (the
"Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making
Registration
Statement (unless it is the same as the time of effectiveness of
the Exchange
Offer Registration Statement) and concurrently with each time the
Market-Making
Registration Statement or the related prospectus shall be amended
or such
prospectus shall be supplemented, the Company shall (if requested
in writing by
the Market-Maker) furnish the Market-Maker and its counsel with a
certificate of
an appropriate Officer to the effect that:
(i) the Market-Making Registration Statement has been
declared
effective;
(ii) in the case of an amendment or supplement, such
amendment has
become effective under the Securities Act as of the date and
time specified
in such certificate, if applicable; if required, such
amendment or
supplement to the prospectus was filed with the SEC pursuant
to the
subparagraph of Rule 424(b) under the Securities Act specified
in such
certificate on the date specified therein; and
(iii) as of the date of the Market-Making Registration
Statement,
amendment or supplement, as applicable, the Market-Making
Registration
Statement and the prospectus, as amended or supplemented, if
applicable,
did not include any untrue statement of a material fact and
did not omit to
state a material fact required to be stated therein or
necessary to make
the statements therein not misleading.
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(f) The Issuers, on the one hand, and the Market-Maker,
on the other
hand, hereby agree to indemnify each other, and, if applicable,
contribute to
the other, in accordance with Section 7 of this Agreement.
(g) The Company will comply with the provisions of this
Section 4 at
its own expense and will reimburse the Market-Maker for its
expenses associated
with this Section 4 (including reasonable fees of counsel).
(h) The agreements contained in this Section 4 and the
representations, warranties and agreements contained in this
Agreement shall
survive all offers and sales of the Registrable Securities or
Exchange
Securities and shall remain in full force and effect, regardless of
any
termination or cancellation of this Agreement or any investigation
made by or on
behalf of any indemnified party.
(i) For purposes of this Section 4, any reference to the
terms
"amend," "amendment" or "supplement" with respect to the
Market-Making
Registration Statement or the prospectus contained therein shall be
deemed to
refer to and include the filing under the Exchange Act of any
document deemed to
be incorporated therein by reference.
5. 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 hereof and that it would not be feasible to ascertain
the extent of
such damages with precision. Accordingly, the Issuers agree to pay,
jointly and
severally, as liquidated damages, additional interest on the Notes
("Additional
Interest") if (A) the Issuers have neither (i) exchanged Exchange
Securities for
all Securities validly tendered in accordance with the terms of the
Exchange
Offer nor (ii) had a Shelf Registration Statement declared
effective, in either
case on or prior to the 270th day after the Issue Date, (B)
notwithstanding
clause (A), the Issuers are required to file a
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