REGISTRATION RIGHTS AGREEMENT

Exhibit 4.3

 

REGISTRATION RIGHTS AGREEMENT

 

Dated as of December 23, 2004

 

Among

 

WMG HOLDINGS CORP.

 

as Issuer,

 

and

 

BANC OF AMERICA SECURITIES LLC

GOLDMAN, SACHS & CO.

DEUTSCHE BANK SECURITIES INC.

 

as Initial Purchasers

 

$250,000,000 Aggregate Principal Amount

at Maturity 9.5% Senior Discount Notes due 2014

 

 

 

TABLE OF CONTENTS

 

 

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REGISTRATION RIGHTS AGREEMENT

 

This Registration Rights Agreement (this “ Agreement ”) is dated as of December 23, 2004, among WMG HOLDINGS CORP., a Delaware corporation (the “ Issuer ”) and BANC OF AMERICA SECURITIES LLC, GOLDMAN, SACHS & CO. and DEUTSCHE BANK SECURITIES INC. (the “ Initial Purchasers ”).

 

This Agreement is entered into in connection with the Purchase Agreement by and among the Issuer and the Initial Purchasers, dated as of December 17, 2004 (the “ Purchase Agreement ”), which provides for, among other things, the sale by the Issuer to the Initial Purchasers of $396,810,000 aggregate principal amount at maturity ($249,998,236 gross proceeds) of the Issuer’s 9.5% Senior Discount Notes due 2014 (the “ Notes ”). In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuer has 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 Notes. The execution and delivery of this Agreement is a condition to the Initial Purchasers’ obligation to purchase the Notes 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:

 

Accreted Value : shall have the meaning assigned thereto in the Indenture.

 

Additional Interest : See Section 4(a) hereof.

 

Advice : See the last paragraph of Section 5 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 banking institutions in New York are authorized or required by law to be closed.

 

Effectiveness Period : See Section 3(a) hereof.

 

Event Date : See Section 4(b) hereof.

 

Exchange Act : The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

Exchange Notes : See Section 2(a) hereof.

 

Exchange Offer : See Section 2(a) hereof.

 

Exchange Offer Registration Statement : See Section 2(a) hereof.

 

Full Accretion Date : shall have the meaning assigned thereto in the Indenture.

 

Holder : Any holder of a Registrable Note or Registrable Notes.

 

Indenture : The Indenture, dated as of December 23, 2004, by and between the Issuer 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 thereof.

 

Information : See Section 5(o) hereof.

 

Initial Purchasers : See the introductory paragraphs hereto.

 

Initial Shelf Registration : See Section 3(a) hereof.

 

Inspectors : See Section 5(o) hereof.

 

Issue Date : December 23, 2004, the date of original issuance of the Notes.

 

Issuer : See the introductory paragraphs hereto.

 

NASD : See Section 5(s) hereof.

 

Notes : See the introductory paragraphs hereto.

 

Participant : See Section 7(a) hereof.

 

Participating Broker-Dealer : See Section 2(b) hereof.

 

Person : An individual, trustee, corporation, partnership, limited liability company, joint stock company, trust, unincorporated association, union, business association, firm or other legal entity.

 

Prospectus : The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434 under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

 

Purchase Agreement : See the introductory paragraphs hereof.

 

Records : See Section 5(o) hereof.

 

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Registrable Notes : shall mean each Note, upon its original issuance and at all times subsequent thereto and each Exchange Note as to which Section 2(c)(iv) hereof is applicable upon original issuance and at all times subsequent thereto; provided, however, that the Notes and Exchange Notes shall cease to be Registrable Notes (i) when, in the case of a Holder of such Notes who was entitled to participate in the Exchange Offer, an Exchange Offer Registration Statement with respect to the Notes shall have been declared effective under the 1933 Act and either (a) such Notes shall have been exchanged pursuant to the Exchange Offer for Exchange Notes or (b) the Notes were not tendered by the Holder thereof in the Exchange Offer, (ii) when a Shelf Registration Statement with respect to the Notes shall have been declared effective under the 1933 Act and the Notes shall have been disposed of pursuant to such Shelf Registration Statement, (iii) when the Notes are able to be sold to the public pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iv) such Notes are sold pursuant to Rule 144 under circumstances in which any legend borne by such Notes relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Issuer or pursuant to the Indenture or (v) when the Notes shall have ceased to be outstanding.

 

Registration Statement : Any registration statement of the Issuer that covers any of the Notes or the Exchange Notes 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 U.S. Securities and Exchange Commission.

 

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.

 

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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.

 

Underwritten registration or underwritten offering : A registration in which securities of the Issuer 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 Issuer shall use its 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 Notes for a like aggregate principal amount at maturity of debt securities of the Issuer (the “ Exchange Notes ”), that are identical in all material respects to the Notes, 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 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 Issuer shall (x) use its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 270th day following the Issue Date.

 

Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuer 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 Issuer or, if it

 

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is an affiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (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, mutatis mutandis , solely with respect to Registrable Notes that are Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Notes (other than Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.

 

No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.

 

(b) The Issuer 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 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 Issuer shall use its 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 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 hereof or such time as such Participating Broker-Dealer no longer owns any Registrable Notes (the “ Applicable Period ”).

 

If any Initial Purchaser determines that it is not eligible to participate in the Exchange Offer with respect to the exchange of Notes constituting any portion of an unsold allotment, at the request of such Initial Purchaser prior to the commencement of the Exchange Offer,

 

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the Issuer shall issue and deliver to such Initial Purchaser or the person purchasing Notes registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Notes, a like principal amount of Registrable Notes or Exchange Notes, as applicable. The Issuer shall use its commercially reasonable efforts to cause the CUSIP Service Bureau to issue the same CUSIP number and International Notes Identification Number (“ ISIN ”) for such Notes as for any Exchange Notes issued pursuant to the Exchange Offer.

 

In connection with the Exchange Offer, the Issuer 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, which may be the Trustee or an Affiliate of the Trustee;

 

(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 applicable laws, rules and regulations.

 

As soon as practicable after the close of the Exchange Offer, the Issuer shall:

 

(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer;

 

(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 Notes or Exchange Notes, as the case may be, equal in principal amount at maturity 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.

 

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The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuer to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuer deems necessary for the consummation of the Exchange Offer.

 

The 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. The Indenture or such indenture shall provide that the Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the 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 Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) the Initial Purchasers or any other holder of Notes not able to participate in the Exchange Offer due to applicable law so requests in writing to the Issuer at any time prior to the commencement 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 than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) and so notifies the Issuer within 15 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 Issuer shall promptly deliver to the Trustee (to deliver to the Holders) written notice thereof (the “ Shelf Notice ”) and shall file a Shelf Registration pursuant to Section 3 hereof.

 

3.

Shelf Registration

 

If at any time a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then:

 

(a) Shelf Registration . The Issuer 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 Issuer shall use its reasonable best efforts to file with the SEC the Initial Shelf Registration. 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 underwritten offering).

 

The Issuer shall use its reasonable best efforts to cause the Shelf Registration to be declared effective under the Securities Act within 270 days of the Issue Date and to keep the Initial Shelf Registration continuously effective under the Securities Act until

 

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the date that is two years from the Issue Date or such shorter period ending when 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 (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. Notwithstanding anything to the contrary in this Agreement, at any time, the Issuer 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 consecutive days, three (3) times during any calendar year (each, a “ Shelf Suspension Period ”), if the Board of Directors of the Issuer 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 Issuer, would be detrimental to the Issuer if so disclosed or would otherwise materially adversely affect a financing, acquisition, disposition, merger or other material transaction or such action is required by applicable law; provided , however , that any Shelf Registration Suspension Period shall extend the number of days the Shelf Registration Statement or Prospectus is available by an amount equal to the number of days in such Shelf Suspension Period.

 

(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 Notes registered thereunder), the Issuer shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within 60 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 Issuer shall use its reasonable best efforts to cause the Subsequent Shelf Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such subsequent Shelf Registration continuously effective for a period equal to the number of days in the Effectiveness Period less the aggregate number of days during which the Initial Shelf Registration or any Subsequent Shelf Registration was previously continuously effective. As used herein the term “ Shelf Registration ” means the Initial Shelf Registration and any Subsequent Shelf Registration.

 

(c) Supplements and Amendments . The Issuer 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

 

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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 if reasonably requested by any underwriter of such Registrable Notes with respect to the information included therein with respect to such underwriter.

 

4.

Additional Interest

 

(a) The Issuer and the Initial Purchasers agree that the Holders will suffer damages if the Issuer fails to fulfill its 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 Issuer agrees to pay, 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) neither (x) the Exchange Offer is completed, nor (y) if required, the Shelf Registration Statement is declared effective, within, in each case, 270 days of the Issue Date, then Additional Interest shall accrue on the Notes at a rate of 0.25% per annum of the average Accreted Value (during such 90-day period) of such Notes for the first 90 days from and including such specified date and increasing by an additional 0.25% per annum of the average Accreted Value (for each such subsequent period) at the beginning of each subsequent 90-day period thereafter; provided that Additional Interest in the aggregate under this Section 4 may not exceed 1.00% per annum of the average Accreted Value of such Notes; or

 

(ii) notwithstanding that the Issuer has consummated or will consummate an Exchange Offer, if the Issuer is required to file a Shelf Registration Statement and such Shelf Registration Statement is not declared effective on or prior to the 270th day following the date the filing of such Shelf Registration Statement is required or requested pursuant to Section 3(a), then Additional Interest shall accrue on the Notes at a rate of 0.25% per annum of the average Accreted Value (during such 90-day period) of such Notes for the first 90 days from and including such specified date and increasing by an additional 0.25% per annum of the average Accreted Value (for each such subsequent period) at the beginning of each subsequent 90-day period thereafter; provided that Additional Interest in the aggregate under this Section 4 may not exceed 1.00% per annum of the average Accreted Value of such Notes; or

 

(iii) if the Shelf Registration Statement required by Section 3(a) of this Agreement has been declared effective but thereafter ceases to be effective at any time at which it is required to be effective under this Agreement and such failure to remain effective exists for more than the number of days permitted by the second paragraph of Section 3 (a), then commencing on the applicable day, following the date on which such Shelf Registration Statement ceases to be effective, Additional Interest shall accrue on the Notes at a rate of 0.25% per annum of the average Accreted Value (during such 90-day period) of such Notes for the first 90 days from and including such day, as applicable, following the date on which such Shelf Registration Statement ceases to be effective and increasing by an additional 0.25% per annum of the average Accreted Value (for each such subsequent period) at the beginning of each subsequent 90-day period thereafter;

 

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provided that Additional Interest in the aggregate under this Section 4 may not exceed 1.00% per annum of the average Accreted Value of such Notes.

 

(b) The Issuer shall notify the Trustee within one business day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid or added to Accreted Value (an “ Event Date ”). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 if such Additional Interest accrued (1) on or prior to the Full Accretion Date, at the option of the Issuer, either shall be (x) added to the Accreted Value of each applicable Note or (y) paid in cash on the interest payment date on which interest accruing on the Notes as of such date as the accrual of Additional Interest as specified by the Indenture and (2) after the Full Accretion Date, shall be payable in cash on each interest payment date on which interest accruing on the Notes as of such date as the accrual of Additional Interest as specified by the Indenture, in each case, to the record holder entitled to receive the interest payment to be made on such date, 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 Accreted Value of the 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.

 

5.

Registration Procedures

 

In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Issuer shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Issuer hereunder the Issuer shall:

 

(a) Prepare and file with the SEC a Registration Statement or Registration Statements as prescribed by Section 2 or 3 hereof, and use their respective reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided , however , that if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto from whom the Issuer has received prior written notice that it will be a Participating Broker-Dealer in the Exchange Offer, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuer 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 hereof) or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their counsel and the managing underwriters, if any, 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).

 

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(b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period, the Applicable Period or until consummation of the Exchange Offer, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424; and comply with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by an Participating Broker-Dealer covered by any such Prospectus. The Issuer shall be deemed not to have used its reasonable best efforts to keep a Registration Statement effective if the Issuer voluntarily takes any action that would result in selling Holders of the Registrable Notes covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period unless such action is required by applicable law or permitted by this Agreement.

 

(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto from whom the Issuer has received written notice that it will be a Participating Broker-Dealer in the Exchange Offer, notify the selling Holders of Registrable Notes (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their counsel and the managing underwriters, if any, promptly (but in any event within one business day), and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Issuer, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated