Exhibit 4.2
$115,000,000
ATLANTIC EXPRESS TRANSPORTATION
CORP.
$105,000,000 12% Senior Secured
Notes due 2008
$10,000,000 Senior Secured Floating Rate Notes due
2008
REGISTRATION RIGHTS
AGREEMENT
April 22, 2004
c/o Jefferies & Company, Inc.
11100 Santa Monica Boulevard
10th Floor
Los Angeles, California 90025
Ladies and Gentlemen:
Atlantic Express Transportation
Corp., a New York corporation (the “ Company ”)
is issuing and selling to Jefferies & Company, Inc. (the
“ Initial Purchaser ”), upon the terms set forth
in the Purchase Agreement dated April 16, 2004, by and among the
Company, the Initial Purchaser and the subsidiary guarantors named
therein (the “ Purchase Agreement ”), 115,000
units (the “ Units ”), consisting of 105,000
senior secured units, each senior secured unit consisting of: (i)
$1,000 principal amount at maturity of 12% senior secured notes due
2008 of the Company (the “ Senior Secured Notes
”) and (ii) one warrant (a “ Warrant ”) to
purchase one share of common stock of the Company, no par value per
share (the “ Common Stock ”), and 10,000 senior
secured floating rate units, each senior secured floating rate unit
consisting of: (i) $1,000 principal amount at maturity of senior
secured floating rate notes due 2008 of the Company (the “
Senior Secured Floating Rate Notes ”) (each Senior
Secured Note and Senior Secured Floating Rate Note being
collectively referred to as a “ Note ” and the
Senior Secured Notes and Senior Secured Floating Rate Notes being
collectively referred to as the “ Notes ”) and
(ii) one Warrant. As an inducement to the Initial Purchaser
to enter into the Purchase Agreement, the Company and the
subsidiary guarantors listed in the signature pages hereto agree
with the Initial Purchaser, for the benefit of the Holders (as
defined below) of the Notes (including, without limitation, the
Initial Purchaser), as follows:
1.
Definitions
Capitalized terms that are used
herein without definition and are defined in the Purchase Agreement
shall have the respective meanings ascribed to them in the Purchase
Agreement. As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest
: See Section
4(a).
Advice : See Section 6(w).
Agreement : This Registration Rights Agreement,
dated as of the Closing Date, between the Company and the Initial
Purchaser.
Applicable Period
: See Section
2(e).
Business Day
: A day that is not a
Saturday, a Sunday or a day on which banking institutions in the
City of New York are authorized or required by law or executive
order to be closed.
Closing Date
: April 22, 2004.
Company : See the introductory paragraph to this
Agreement.
Day : Unless otherwise expressly provided, a
calendar day.
Effectiveness Date
: The 180 th day
after the Issue Date, or if the Effectiveness Date is not a
Business Day, the next succeeding Business Day; provided
that if delivery of the Shelf Notice pursuant to Section 2(j)
herein occurs after the 60 th day following the Closing
Date, the applicable Effectiveness Date for the Initial Shelf
Registration shall be the 90 th day following the
applicable Filing Date for the Initial Shelf
Registration.
Effectiveness Period
: See Section
3(a).
Event Date
: See Section 4(b).
Exchange Act
: The Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes
: The $105,000,000 aggregate
principal amount of 12 % senior secured notes of the Company due
2008 (the “ Senior Secured Exchange Notes ”) and
the $10,000,000 aggregate principal amount of senior secured
floating rate notes of the Company due 2008 (the “ Senior
Secured Floating Rate Exchange Notes ”), identical in all
material respects to the Senior Secured Notes and the Senior
Secured Floating Rate Notes, respectively, including the guarantees
endorsed thereon, except for references to series and restrictive
legends. Each Senior Secured Exchange Note and Senior Secured
Floating Rate Exchange Note is collectively referred to as an
“ Exchange Note ” and the Senior Secured
Exchange Notes and Senior Secured Floating Rate Exchange Notes are
collectively referred to as the “ Exchange Notes
”).
Exchange Offer
: See Section 2(a).
Exchange Registration
Statement : See
Section 2(a).
Filing Date
: The 90 th day
after the Issue Date, or if such Filing Date is not a Business Day,
the next succeeding Business Day; provided that if a
delivery of the Shelf Notice pursuant to Section 2(j) herein occurs
after the 60 th day following the Closing Date, the
applicable Filing
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Date for the Initial Shelf Registration shall be
the 30 th day following the date of delivery of such
Shelf Notice.
Holder : Any registered holder of Registrable
Notes.
Indemnified Party
: See Section
8(c).
Indemnifying Party
: See Section
8(c).
Indenture : The Indenture, dated as of the Closing
Date, among the Company, the Subsidiary Guarantors and The Bank of
New York, as trustee, pursuant to which the Notes are being issued,
as amended or supplemented from time to time in accordance with the
terms hereof.
Initial Purchaser
: See the introductory
paragraph to this Agreement.
Initial Shelf
Registration : See
Section 3(a).
Inspectors
: See Section 6(o).
Issue Date
: April 22, 2004.
Lien: Shall have the meaning set forth in the
Indenture.
Losses:
See Section 8(a).
NASD : National Association of Securities
Dealers, Inc.
Notes : See the introductory paragraph to this
Agreement.
Participating
Broker-Dealer : See
Section 2(e).
Person : An individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm,
government or agency or political subdivision thereof, or other
legal entity.
Private Exchange
: See Section
2(f).
Private Exchange Notes
: See Section 2(f).
Prospectus
: 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 promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable
Notes covered by such Registration Statement, 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.
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Purchase Agreement
: See the introductory
paragraph to this Agreement.
Records : See Section 6(o).
Registrable Notes
: (i) Notes, (ii) Private
Exchange Notes and (iii) Exchange Notes received in the Exchange
Offer, in each case, that may not be sold without restriction under
federal or state securities laws.
Registration Statement
: Any registration statement
of the Company and the Subsidiary Guarantors filed with the SEC
under the Securities Act (including, but not limited to, the
Exchange Registration Statement, the Shelf Registration and any
subsequent Shelf Registration) that covers any of the Registrable
Notes pursuant to the provisions of this Agreement, 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 promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule (other than Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and sales of securities
made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such
securities being free of the registration and prospectus delivery
requirements of the Securities Act.
Rule 144A : Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
Rule 415 : Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
Rule 430A : Rule 430A promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
SEC : The Securities and Exchange
Commission.
Securities
: The Notes, the Exchange
Notes and the Private Exchange Notes.
Securities Act
: The Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated
thereunder.
Security Documents
: Shall have the meaning set
forth in the Indenture.
Senior Secured Exchange
Notes : See definition of
Exchange Notes
Senior Secured Floating Rate
Exchange Notes : See
definition of Exchange Notes
Senior Secured Floating Rate
Private Exchange Notes :
See Section 2(f).
Senior Secured Floating Rate
Notes : See the
introductory paragraph to this Agreement.
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Senior Secured Notes
: See the introductory paragraph to
this Agreement.
Senior Secured Private Exchange
Notes : See Section
2(f).
Shelf Notice
: See Section 2(j).
Shelf Registration
: See Section
3(b).
Subsequent Shelf
Registration : See
Section 3(b).
Subsidiary Guarantor
: Each subsidiary of the
Company that guarantees the obligations of the Company under the
Notes and Indenture.
TIA : The Trust Indenture Act of 1939, as
amended.
Trustee : The trustee under the Indenture and, if
existent, the trustee under any indenture governing the Exchange
Notes and Private Exchange Notes (if any).
Underwritten Registration or
Underwritten Offering : A registration in which securities of
the Company are sold to an underwriter for reoffering to the
public.
2.
Exchange
Offer
(a)
Unless the Exchange Offer would not
be permitted by applicable laws or a policy of the SEC, the Company
shall (and shall cause each Subsidiary Guarantor to) (i) prepare
and file with the SEC promptly after the date hereof, but in no
event later than the Filing Date, a registration statement (the
“ Exchange Registration Statement ”) on an
appropriate form under the Securities Act with respect to an offer
(the “ Exchange Offer ”) to the Holders of Notes
to issue and deliver to such Holders, in exchange for the Notes, a
like principal amount of Exchange Notes, (ii) use commercially
reasonable efforts to cause the Exchange Registration Statement to
become effective as promptly as practicable after the filing
thereof, but in no event later than the Effectiveness Date, (iii)
use commercially reasonable efforts to keep the Exchange
Registration Statement effective until the consummation of the
Exchange Offer in accordance with its terms, and (iv) commence the
Exchange Offer and use commercially reasonable efforts to issue on
or prior to 30 days after the date on which the Exchange
Registration Statement is declared effective, Exchange Notes in
exchange for all Notes tendered prior thereto in the Exchange
Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the
SEC.
(b)
The Exchange Notes shall be issued
under, and entitled to the benefits of, (i) the Indenture or a
trust indenture that is identical to the Indenture (other than such
changes as are necessary to comply with any requirements of the SEC
to effect or maintain the qualifications thereof under the TIA) and
(ii) the Security Documents.
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(c)
Interest on the Exchange Notes and
Private Exchange Notes will accrue (A) from the later of (i) the
last interest payment due date on which interest was paid on the
Notes surrendered in exchange therefore or (ii) if the note is
surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or after the
date of such exchange and as to which interest will be paid, the
date of such interest payment date; or (B) if no interest has been
paid on the Notes, from the date of original issue of the
Notes. Each Senior Secured Exchange Note, Senior Secured
Floating Rate Exchange Note, Senior Secured Private Exchange Note
and Senior Secured Floating Rate Private Exchange Note shall bear
interest at the rate set forth thereon; provided , that
interest with respect to the period prior to the issuance thereof
shall accrue at the rate or rates borne by the Senior Secured Notes
and the Senior Secured Floating Rate Notes from time to time during
such period.
(d)
The Company may require each Holder
as a condition to participation in the Exchange Offer to represent
(i) that any Exchange Notes received by it will be acquired in the
ordinary course of its business, (ii) that at the time of the
commencement of the Exchange Offer such Holder has not entered into
any arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the provisions of the Securities
Act, (iii) that either such Holder is not an
“affiliate” of the Company within the meaning of Rule
405 of the Securities Act, or if such Holder is an
“affiliate,” it will comply with the registration and
prospectus delivery requirements of the Securities Act to the
extent applicable to it, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Notes and (v) if such Holder is
a Participating Broker-Dealer, that it will deliver a Prospectus in
connection with any resale of the Exchange Notes.
(e)
The Company shall (and shall cause
each Subsidiary Guarantor to) include within the Prospectus
contained in the Exchange Registration Statement a section entitled
“Plan of Distribution” reasonably acceptable to the
Initial Purchaser 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 for its own account in exchange
for Notes that were acquired by it as a result of market-making or
other trading activity (a “ Participating
Broker-Dealer ”), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial Purchaser,
represent the prevailing views of the staff of the SEC. Such
“Plan of Distribution” section shall also allow, 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 so permitted, all Participating Broker-Dealers, and include
a statement describing the manner in which Participating
Broker-Dealers may resell the Exchange Notes. The Company
shall use commercially reasonable efforts to keep
6
the Exchange 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 such
Persons must comply with such requirements in order to resell the
Exchange Notes (the “ Applicable Period
”).
(f)
If, upon consummation of the
Exchange Offer, the Initial Purchaser holds any Senior Secured
Notes or Senior Secured Floating Rate Notes acquired by it and
having the status of an unsold allotment in the initial
distribution, the Company (upon the written request from the
Initial Purchaser) shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser, in exchange (the “ Private Exchange
”) for the Senior Secured Notes or Senior Secured Floating
Rate Notes, as the case may be, held by the Initial Purchaser, a
like principal amount of senior secured notes or senior secured
floating rate notes that are identical to the Senior Secured
Exchange Notes or the Senior Secured Floating Rate Exchange Notes
except for the existence of restrictions on transfer thereof under
the Securities Act and securities laws of the several states of the
United States (such notes being referred to separately as the
“ Senior Secured Private Exchange Notes” and the
“ Senior Secured Floating Rate Private Exchange Notes
”, and collectively as the “ Private Exchange
Notes ”) (and which are issued pursuant to the same
indenture as the Exchange Notes). The Senior Secured Private
Exchange Notes shall bear the same CUSIP number as the Senior
Secured Exchange Notes and the Senior Secured Floating Rate Private
Exchange Notes shall bear the same CUSIP number as the Senior
Secured Floating Rate Exchange Notes.
(g)
In connection with the Exchange
Offer, the Company shall (and shall cause each Subsidiary Guarantor
to):
(i)
mail to each Holder a copy of the
Prospectus forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal that is an
exhibit to the Exchange Offer Registration Statement, and any
related documents;
(ii)
keep the Exchange Offer open for not
less than 30 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law)
(iii)
utilize the services of a depository
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
thereof;
(iv)
permit Holders to withdraw tendered
Registrable Notes at any time prior to the close of business, New
York time, on the last Business Day on which the Exchange Offer
shall remain open; and
(v)
otherwise comply in all material
respects with all applicable laws.
7
(h)
As soon as practicable after the
close of the Exchange Offer or the Private Exchange, as the case
may be, the Company shall (and shall cause each Subsidiary
Guarantor to):
(i)
accept for exchange all Registrable
Notes validly tendered pursuant to the Exchange Offer or the
Private Exchange, as the case may be, and not validly
withdrawn;
(ii)
deliver to the Trustee for
cancellation all Registrable Notes so accepted for exchange;
and
(iii)
cause the Trustee to authenticate
and deliver promptly to each Holder tendering such Registrable
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.
(i)
The Exchange Notes and the Private
Exchange Notes may be issued under (i) the Indenture or (ii)
an indenture identical to the Indenture (other than such changes as
are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA), which in
either event will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture,
that the Private Exchange Notes will be subject to the transfer
restrictions set forth in the Indenture, and that the Exchange
Notes, the Private Exchange Notes and the Notes, if any, will be
deemed one class of security (subject to the provisions of the
Indenture) and entitled to participate in all the security granted
by the Company pursuant to the Security Documents and in any
Subsidiary Guarantee (as such terms are defined in the Indenture)
on an equal and ratable basis.
(j)
If: (i) prior to the
consummation of the Exchange Offer, the Holders of a majority in
aggregate principal amount of Registrable Notes determines in its
or their reasonable judgment that the Exchange Notes would not,
upon receipt, be tradeable by the Holders thereof without
restriction under the Securities Act and the Exchange Act and
without material restrictions under applicable Blue Sky or state
securities laws; (ii) because of any change in law or applicable
interpretations of the staff of the SEC, the Company is not
permitted to effect the Exchange Offer (after the Company and the
Subsidiary Guarantors have complied with the procedures set forth
herein); (iii) subsequent to the consummation of the Private
Exchange, any Holder of Private Exchange Notes so requests; (iv)
the Exchange Offer is not consummated within 30 days from the date
the Exchange Offer Registration Statement was declared effective;
or (v) in the case of (A) any Holder not permitted to participate
in the Exchange Offer, (B) any Holder participating in the Exchange
Offer that receives Exchange Notes that may not 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) or (C) any broker-dealer
that holds Notes acquired directly from the Company or any of its
affiliates and, in each such case
8
contemplated by this clause (v),
such Holder notifies the Company within six months of consummation
of the Exchange Offer, then the Company shall promptly (and in any
event within five Business Days) deliver to the Holders (or in the
case of an occurrence of any event described in clause (v) of this
Section 2(j), to any such Holder) and the Trustee notice thereof
(the “ Shelf Notice ”) and shall as promptly as
possible thereafter (but in no event later than the applicable
Filing Date) file an Initial Shelf Registration pursuant to Section
3.
3.
Shelf
Registration
If a Shelf Notice is delivered
pursuant to Section 2(j), then this Section 3 shall apply to all
Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of
Section 3 shall apply solely with respect to (i) Notes held by any
Holder thereof not permitted to participate in the Exchange Offer,
(ii) Notes held by any broker-dealer that acquired such Notes
directly from the Company or any of its affiliates and (iii)
Exchange Notes that are not freely tradeable as contemplated by
Section 2(j)(v) hereof, provided in each case that the relevant
Holder has duly notified the Company within six months of the
Exchange Offer as required by Section 2(j)(v).
(a)
Initial Shelf
Registration . The
Company shall (and shall cause each Subsidiary Guarantor to), 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 ”). If the Company (and any
Subsidiary Guarantor) has not yet filed an Exchange Registration
Statement, the Company shall (and shall cause each Subsidiary
Guarantor to) file with the SEC the Initial Shelf Registration on
or prior to the Filing Date and shall use commercially reasonable
efforts to cause such Initial Shelf Registration to be declared
effective under the Securities Act on or prior to the Effectiveness
Date. Otherwise, the Company shall (and shall cause each
Subsidiary Guarantor to) use commercially reasonable efforts to
file with the SEC the Initial Shelf Registration within 30 days of
the delivery of the Shelf Notice and shall use commercially
reasonable efforts to cause such Shelf Registration to be declared
effective under the Securities Act as promptly as practicable
thereafter (but in no event more than 90 days after delivery of the
Shelf Notice). 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 reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Company
and Subsidiary Guarantors shall not permit any securities other
than the Registrable Notes to be included in any Shelf
Registration. The Company shall (and shall cause each
Subsidiary Guarantor to) use commercially reasonable efforts to
keep the Initial Shelf Registration continuously effective under
the Securities Act until the date which is 24 months from the
Closing Date (subject to extension pursuant to the last paragraph
of Section 6(w) (the “ Effectiveness Period ”),
or such shorter period ending when (i) 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 (ii) a Subsequent Shelf Registration covering all of
the Registrable
9
Notes covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act
or (iii) there cease to be any outstanding Registrable
Notes.
(b)
Subsequent Shelf
Registrations . If
the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below) 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 or because the
Securities registered thereunder cease to be outstanding), the
Company shall (and shall cause each Subsidiary Guarantor to) use
its reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall
within 30 days of such cessation of effectiveness amend such Shelf
Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file (and cause each
Subsidiary Guarantor to file) an additional “shelf”
Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes (a “ Subsequent Shelf Registration
”). If a Subsequent Shelf Registration is filed, the
Company shall (and shall cause each Subsidiary Guarantor to) use
commercially reasonable efforts to cause the Subsequent Shelf
Registration to be declared effective 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
Registrations
(c)
Supplements and
Amendments . The
Company shall promptly supplement and amend any 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 in writing by the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Shelf Registration or by any
underwriter of such Registrable Notes.
(d)
Provision of
Information. No Holder of Registrable
Notes shall be entitled to include any of its Registrable Notes in
any Shelf Registration pursuant to this Agreement unless such
Holder furnishes to the Company and the Trustee in writing, within
20 days after receipt of a written request therefor, such
information as the Company and the Trustee after conferring with
counsel with regard to information relating to Holders that would
be required by the SEC to be included in such Shelf Registration or
Prospectus included therein, may reasonably request for inclusion
in any Shelf Registration or Prospectus included therein, and no
such Holder shall be entitled to Additional Interest pursuant to
Section 4 hereof unless and until such Holder shall have provided
such information.
10
4.
Additional
Interest
(a)
The Company and each Subsidiary
Guarantor acknowledges and agrees that the Holders of Registrable
Notes will suffer damages if the Company or any Subsidiary
Guarantor fails to fulfill its material 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 Company
and the Subsidiary Guarantors agree to pay additional cash 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 neither the Exchange Registration
Statement nor the Initial Shelf Registration has been filed on or
prior to the applicable Filing Date, Additional Interest shall
accrue on the Notes over and above any stated interest at a rate of
0.25% per annum of the principal amount of such Notes for the first
90 days immediately following the applicable Filing Date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(ii)
if neither the Exchange Registration
Statement nor the Initial Shelf Registration is declared effective
by the SEC on or prior to the applicable Effectiveness Date,
Additional Interest shall accrue on the Notes over and above any
stated interest at a rate of 0.25% per annum of the principal
amount of such Notes for the first 90 days immediately following
the Effectiveness Date, such Additional Interest rate increasing by
an additional 0.25% per annum at the beginning of each subsequent
90-day period;
(iii)
if (A) the Company (and any
Subsidiary Guarantor) has not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 30 Business Days after the applicable
Effectiveness Date, (B) the Exchange Registration Statement ceases
to be effective at any time prior to the time that the Exchange
Offer is consummated, (C) if applicable, a Shelf Registration has
been declared effective and such Shelf Registration ceases to be
effective at any time prior to the second anniversary of its
effective date (other than such time as all Notes have been
disposed of thereunder), or (D) pending the announcement of a
material corporate transaction, the Company issues a written notice
pursuant to Section 6(e)(v) or (vi) that a Shelf Registration
Statement or Exchange Registration Statement is unusable and the
aggregate number of days in any 365-day period for which all such
notices issued or required to be issued, have been, or were
required to be, in effect exceeds 120 days in the aggregate or 30
days consecutively, in the case of a Shelf Registration statement,
or 15 days in the aggregate in the case of an Exchange Registration
Statement, then Additional Interest shall accrue on the Notes, over
and above any stated interest, at a rate of 0.25% per annum of the
principal amount of such Notes commencing on (w) the
30th
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Business Day after the Effectiveness
Date, in the case of (A) above, or (x) the date the Exchange
Registration Statement ceases to be effective without being
declared effective again within 30 days, in the case of clause (B)
above, or (y) the day such Shelf Registration ceases to be
effective in the case of (C) above, or (z) the day the Exchange
Registration Statement or Shelf Registration ceases to be usable in
case of clause (D) above, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however
, that the maximum Additional
Interest rate on the Notes may not exceed at any one time in the
aggregate 1.00% per annum; and provided further , that (1)
upon the filing of the Exchange Registration Statement or Initial
Shelf Registration (in the case of (i) above), (2) upon the
effectiveness of the Exchange Registration Statement or Initial
Shelf Registration (in the case of (ii) above), or (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case of
(iii)(A) above), or upon the effectiveness of the Exchange
Registration Statement that had ceased to remain effective (in the
case of clause (iii)(B) above), or upon the effectiveness of a
Shelf Registration which had ceased to remain effective (in the
case of (iii)(C) above), Additional Interest on the Notes as a
result of such clause (or the relevant subclause thereof) or upon
the effectiveness of such Registration Statement or Exchange
Registration Statement (in the case of clause (iii)(D) above), as
the case may be, shall cease to accrue.
(b)
The Company shall notify the Trustee
within 3 Business Days after each and every date on which an event
occurs in respect of which Additional Interest is required to be
paid (an “ Event Date ”). Any accrued
amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash
, on each Interest Payment Date (as defined in the Notes)
and in the manner provided in the Indenture. The amount of
Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the
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.
Hold-Back
Agreements
The Company agrees that it will not
effect any public or private sale or distribution (including a sale
pursuant to Regulation D under the Securities Act) of any
securities of the same class as to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than
Additional Notes (as defined in the Indenture) issued under the
Indenture), or any securities convertible into or exchangeable or
exercisable for such securities, during the 10 days prior to, and
during the 90-day period beginning on, the effective date of any
Registration Statement filed pursuant to Sections 2 and 3 hereof
unless the Holders of a majority in the aggregate principal amount
of the Registrable Notes included or to be included in
such
12
Registration Statement consent or, if there is
one, if the managing underwriter thereof so requests in
writing.
6.
Registration
Procedures
In connection with the filing of any
Registration Statement pursuant to Sections 2 or 3 hereof, the
Company shall (and shall cause each Subsidiary Guarantor to) effect
such registrations to permit the sale of such 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 Company hereunder, the
Company shall (and shall cause each Subsidiary Guarantor
to):
(a)
Prepare and file with the SEC as
soon as practicable after the date hereof but in any event on or
prior to the Filing Date, the Exchange Registration Statement or if
the Exchange Registration Statement is not filed because of the
circumstances contemplated by Section 2(j), a Shelf Registration as
prescribed by Section 3, and use commercially reasonable efforts to
cause each such Registration Statement to become effective and
remain effective as provided herein; provided that, if (1) a
Shelf Registration is filed pursuant to Section 3 or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 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,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto the Company shall (and shall
cause each Subsidiary Guarantor to), if requested, furnish to and
afford the Holders of the Registrable Notes to be registered
pursuant to such Shelf Registration Statement, each Participating
Broker-Dealer, the managing underwriters, if any, and each of their
respective counsel, 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 3 Business Days prior
to such filing). The Company and each Subsidiary Guarantor
shall not file any such Registration Statement or Prospectus, or
any amendments or supplements thereto in respect of which the
Holders must provide information for the inclusion therein, without
the Holders being afforded an opportunity to review such
documentation if the holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may
be, the managing underwriters, if any, or any of their respective
counsel shall reasonably object in writing on a timely basis. A
Holder shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an
untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein not misleading or
fails to comply with the applicable requirements of the Securities
Act.
(b)
Provide an indenture trustee for the
Registrable Notes, the Exchange Notes or the Private Exchange
Notes, as the case may be, and cause the Indenture (or
other
13
indenture relating to the
Registrable Notes) to be qualified under the TIA not later than the
effective date of the first Registration Statement; and in
connection therewith, to effect such changes to such indenture as
may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use commercially
reasonable efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(c)
Prepare and file with the SEC any
amendments to each Shelf Registration or Exchange Registration
Statement, as the case m
