“ Affiliate ” of any specified Person shall mean any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person.  For purposes of this definition, “control” of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise, and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.

 

“ Broker-Dealer ” shall mean any broker or dealer registered as such under the Exchange Act.

 

“ Broker-Dealer Transfer Restricted Securities” shall mean New Securities that are acquired by a Broker-Dealer in the Exchange Offer in exchange for Securities that such Broker-Dealer acquired for its own account as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its Affiliates).

 

“ Business Day ” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City or in the city of the corporate trust office of the Trustee.

 

“ Commission ” shall mean the Securities and Exchange Commission.

 

“ Consummate ” an Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Act of the Exchange Offer Registration Statement relating to the New Securities to be issued in the Exchange Offer, (ii) 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 (iii) the delivery by the Company to the Registrar under the Indenture of New Securities in the same aggregate principal amount as the aggregate principal amount of Securities that were tendered by Holders thereof pursuant to the Exchange Offer.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“ Exchange Offer ” shall mean the registration by the Company and the Guarantors under the Act of the New Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for New Securities in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders.

 

“ Exchange Offer Registration Statement ” shall mean a registration statement of the Company and the Guarantors on an appropriate form under the Act with respect to the Exchange Offer, all amendments and supplements to such registration statement, including post-effective amendments thereto, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

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“ Final Memorandum ” shall have the meaning set forth in the Purchase Agreement.

 

“ FINRA ” shall mean the Financial Industry Regulatory Authority.

 

“ Free Writing Prospectus ” means each free writing prospectus (as defined in Rule 405 under the Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the New Securities.

 

“ Guarantors ” shall mean the guarantors listed on the signature pages hereof (each individually, a “ Guarantor ” and collectively, the “ Guarantors ”).

 

“ Holder ” shall have the meaning set forth in Section 2(b) hereof.

 

“ indemnified party ” shall have the meaning set forth in Section 8(c) hereof.

 

“ indemnifying party ” shall have the meaning set forth in Section 8(c) hereof.

 

“ Indenture ” shall mean the Indenture, dated as of May 12, 2009, among the Company, the Guarantors and U.S. Bank National Association, as trustee (the “ Trustee ”), pursuant to which the Securities and the New Securities are to be issued as such Indenture may be amended or supplemented from time to time in accordance with the terms thereof.

 

“ Initial Placement ” shall have the meaning set forth in the preamble hereto.

 

“ Initial Purchaser ” shall have the meaning set forth in the preamble hereto.

 

“ Interest Payment Date ” shall have the meaning set forth in the Indenture and the Notes.

 

“ Issuer Information ” shall have the meaning set forth in Section 8(a) hereof.

 

“ New Securities ” shall mean debt securities of the Company, including guarantees thereon, identical in all material respects to the Securities and any Additional Securities (except that the cash interest, interest rate step-up provisions and transfer restrictions shall be modified or eliminated, as appropriate) to be issued under the Indenture in exchange for Transfer Restricted Securities.

 

“ Notes ” shall have the meaning set forth in the preamble hereto.

 

“ Person ” shall mean an individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.

 

“ Prospectus ” shall mean the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A under the Act and any Free Writing Prospectus), as amended or supplemented by any prospectus

 

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supplement, with respect to an Exchange Offer or a Shelf Registration, and all amendments and supplements thereto and all material incorporated by reference therein.

 

“ Purchase Agreement ” shall have the meaning set forth in the preamble hereto.

 

“ Registration Default ” shall have the meaning set forth in Section 5 hereof.

 

“ Registration Statement ” shall mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the Securities or the New Securities pursuant to the provisions of this Agreement, any amendments and supplements to such registration statement, including post-effective amendments (in each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by reference therein.

 

“ Securities ” shall have the meaning set forth in the preamble hereto.

 

“ Shelf Filing Deadline ” shall have the meaning set forth in Section 4(a)(x) hereof.

 

“ Shelf Registration ” shall mean a registration effected pursuant to Section 4 hereof.

 

“ Shelf Registration Statement ” shall have the meaning set forth in Section 4(a)(x) hereof.

 

“ Transfer Restricted Securities ” shall mean each Security, until the earliest to occur of (a) the date on which such Security has been exchanged by a Person other than a Broker-Dealer for a New Security in the Exchange Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer of a Security for a New Security, the date on which such New Security is sold to a purchaser who receives from such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement, (c) the date on which such Security has been effectively registered under the Act and disposed of in accordance with the Shelf Registration Statement, or (d) the date on which such Security is distributed to the public pursuant to Rule 144 under the Act.

 

“ Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, as amended.

 

“ Trustee ” shall mean the trustee with respect to the Securities under the Indenture.

 

“ underwriter ” shall mean any underwriter of Securities in connection with an offering thereof under a Shelf Registration Statement.

 

“ Underwritten Registration ” or “ Underwritten Offering ” shall mean a registration in which securities of the Company are sold to an underwriter for reoffering to the public.

 

2.             Securities Subject to this Agreement .

 

(a)           Transfer Restricted Securities .  The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities.

 

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(b)           Holders of Transfer Restricted Securities .  A Person is deemed to be a holder of Transfer Restricted Securities (each, a “ Holder ”) whenever such Person owns Transfer Restricted Securities.

 

3.             Registered Exchange Offer .

 

(a)           Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with), the Company and the Guarantors shall (i) use their best efforts to cause to be filed with the Commission on or prior to November 9, 2009, the Exchange Offer Registration Statement under the Act relating to the New Securities and the Exchange Offer, (ii) use their commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective on or prior to January 7, 2010 of such filing, (iii) in connection with the foregoing, file (A) all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) 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 in connection with the registration and qualification of the New Securities to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence the Exchange Offer.  The Exchange Offer shall be on the appropriate form permitting registration of the New Securities to be offered in exchange for the Transfer Restricted Securities and to permit resales of Broker-Dealer Transfer Restricted Securities by Broker-Dealers as contemplated by Section 3(c) below.

 

(b)           The Company and the Guarantors shall 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 New Securities and the related guarantees thereto shall be included in the Exchange Offer Registration Statement.  The Company and the Guarantors shall use their commercially reasonable efforts to cause the Exchange Offer to be Consummated within 40 days after the Exchange Offer Registration Statement has become effective.

 

(c)           The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds Securities that are Transfer Restricted Securities and that were acquired for its own account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company or one of its Affiliates), may exchange such Securities pursuant to the Exchange Offer; however, 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 any resales of the New Securities received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement.  Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission

 

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may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Securities held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement.

 

The Company and the Guarantors shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) below to the extent necessary to ensure that it is available for resales of Broker-Dealer Transfer Restricted Securities acquired by Broker-Dealers, and to ensure that it 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 ending on the earlier of (i) 90 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities.

 

The Company shall provide sufficient copies of the latest version of such Prospectus to such Broker-Dealers promptly upon request at any time during such 90-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales.

 

4.             Shelf Registration .

 

(a)           Shelf Registration .  If (i) the Company and the Guarantors are not permitted to Consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with), or (ii) any Holder of Transfer Restricted Securities shall notify the Company on or prior to the 20th day following the Consummation of the Exchange Offer that (A) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, (B) such Holder may not resell the New Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that 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 owns Securities acquired directly from the Company or an Affiliate of the Company, then, the Company and the Guarantors shall:

 

(x)  use their best efforts to cause to be filed a shelf registration statement pursuant to Rule 415 under the Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the “ Shelf Registration Statement ”) on or prior to 60 days after such filing obligation arises pursuant to this paragraph 4(a), (such date being the “ Shelf Filing Deadline ”), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and

 

(y)  use their commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or prior to 120 days after such filing obligation arises pursuant to paragraph 4(a) above.

 

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The Company and the Guarantors shall use their commercially reasonable efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Notes by the Holders of Transfer Restricted Securities entitled to the benefit of this Section 4(a), and to ensure that it 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 following the effective date of such Shelf Registration Statement (or shorter period that will terminate when all the Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement).

 

(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, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein.  Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.

 

5.             Additional Interest .

 

If (i) any Registration Statement required by this Agreement is not filed with the Commission on or prior to the date specified for such filing in this Agreement, (ii) any such Registration Statement has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement, (iii) the Exchange Offer has not been Consummated within 40 days after the Exchange Offer Registration Statement is declared effective 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 without being succeeded immediately by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective (each such event referred to in clauses (i) through (iv), a “ Registration Default ”), the Company and the Guarantors hereby agree to pay additional interest to each Holder of outstanding Securities (“ Additional Interest ”) during the period of one or more Registration Defaults, with respect to the first 90-day period immediately following the occurrence of the first Registration Default in an amount equal to 0.25% per annum (which amount will be increased by an additional 0.25% per annum for each subsequent 90-day period that any Additional Interest continues to accrue; provided that the amounts at which Additional Interest accrue may in no event exceed 1.0% per annum) in respect of the Transfer Restricted Securities held by such Holder until the applicable Registration Statement is filed, the Exchange Offer Registration Statement is declared effective and the Exchange Offer is Consummated or the Shelf Registration Statement is declared effective or a Registration Statement again becomes effective, as the case may be.  All accrued Additional Interest will be paid by the Company and the Guarantors on each Interest Payment Date to Holders of global Securities by wire transfer of immediately available funds or by federal funds check and to holders of certificated Securities by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. 

 

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Following the cure of all Registration Defaults, the accrual of Additional Interest will cease; provided , however , that, if after the cessation of the accrual of Additional Interest, a different Registration Default occurs, Additional Interest shall again accrue pursuant to the foregoing provisions.

 

All obligations of the Company and the Guarantors set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such Security shall have been satisfied in full.

 

6.             Registration Procedures .

 

(a)           Exchange Offer Registration Statement .  In connection with the Exchange Offer, the Company and the Guarantors shall comply with the applicable provisions of Section 6(c) below, shall use their commercially reasonable efforts to effect such exchange to permit the sale of Broker-Dealer Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (which shall be in a manner consistent with the terms of this Agreement), and shall comply with all of the following provisions:

 

(i)            If in the reasonable opinion of counsel to the Company there is a question as to whether the Exchange Offer is permitted by applicable 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 Securities.  The Company and the Guarantors each 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.  The Company and the Guarantors each hereby agree, however, to (A) participate in telephonic conferences with the staff of Commission, (B) deliver 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) use commercially reasonable efforts to diligently pursue a favorable resolution by the Commission staff of such submission.

 

(ii)           As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (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 New Securities to be issued in the Exchange Offer and (C) it is acquiring the New Securities in its ordinary course of business.  In addition, all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Company’s and the Guarantor’s preparations for the Exchange Offer.  Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the

 

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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 (which may include 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 should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its Affiliates.

 

(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) 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 New Securities to be received in the Exchange Offer and that, to the best of the Company’s information and belief, each Holder participating in the Exchange Offer is acquiring the New Securities in its ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the New Securities 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.

 

(b)           Shelf Registration Statement .  In connection with the Shelf Registration Statement, the Company and the Guarantors shall comply with all the provisions of Section 6(c) below and shall use their 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, and pursuant thereto the Company and the Guarantors will as expeditiously as possible prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof.

 

(c)           General Provisions .  In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit resales of Broker-Dealer Transfer Restricted Securities by Broker-Dealers), the Company and the Guarantors shall:

 

(i)            use their commercially reasonable efforts to keep such Registration Statement continuously effective and provide all requisite financial statements (including, if required by the Act or any regulation thereunder, financial statements of the

 

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Guarantors) for the period specified in Section 3 or 4 of this Agreement, as applicable; upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company and the Guarantors shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use their commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;

 

(ii)           use commercially reasonable efforts to prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;

 

(iii)          advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initia