Exhibit 10.2
First Data
Corporation
Senior Subordinated Notes due
2016
unconditionally guaranteed as to
the
payment of principal,
premium,
if any, and interest by
the
Guarantors
Registration Rights
Agreement
September 24, 2008
Citibank, N.A.,
As Administrative Agent for the
Lenders
referred to below
c/o Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
First Data Corporation, a Delaware
Corporation (the “ Company ”), proposes
to issue upon the terms set forth in the Loan Agreement (as defined
herein) to the Lenders (as defined in the Loan Agreement) its
Senior Subordinated Notes due 2016 (the “ Senior
Subordinated Notes ”), in each case upon exchange of
a like aggregate principal amount of Loans (as defined in the Loan
Agreement) for such Senior Subordinated Notes pursuant to
Section 2.14(b) of the Loan Agreement. The Senior Subordinated
Notes will be unconditionally guaranteed by the Guarantors (as
defined herein). In satisfaction of a condition to the exchange of
Loans for the Senior Subordinated Notes, the Company and the
Guarantors agree with the Administrative Agent (as defined herein)
for the benefit of the Lenders and the other holders (as defined
herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. Certain Definitions . For
purposes of this Exchange and Registration Rights Agreement (this
“ Agreement ”), the following terms shall
have the following respective meanings:
“ Additional
Interest ” shall have the meaning assigned thereto in
Section 2(d).
“ Administrative
Agent ” shall mean Citibank, N.A., as administrative
agent for the Lenders under the Loan Agreement.
“ Base Interest
” shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Senior Subordinated
Indenture, without giving effect to the provisions of this
Agreement.
The term “
broker-dealer ” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“ Business Day
” shall have the meaning set forth in Rule 13e-4(a)(3)
promulgated by the Commission under the Exchange Act, as the same
may be amended or succeeded from time to time.
“ Commission
” shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“ Company
” shall have the meaning set forth in the preamble
hereto.
“ EDGAR System
” means the EDGAR filing system of the Commission and the
rules and regulations pertaining thereto promulgated by the
Commission in Regulation S-T under the Securities Act and the
Exchange Act, in each case as the same may be amended or succeeded
from time to time (and without regard to format).
“ Effective Time
, ” in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares
the Exchange Registration Statement effective or as of which the
Exchange Registration Statement otherwise becomes effective and
(ii) a Shelf Registration, shall mean the time and date as of
which the Commission declares the Shelf Registration Statement
effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“ Electing
Holder ” shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(d)(ii) or Section 3(d)(iii) and the
instructions set forth in the Notice and Questionnaire.
“ Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission
thereunder, as the same may be amended or succeeded from time to
time.
“ Exchange Date
” shall mean the first date on which any Securities are
issued.
“ Exchange Offer
” shall have the meaning assigned thereto in
Section 2(b).
“ Exchange
Registration ” shall have the meaning assigned
thereto in Section 3(c).
“ Exchange Registration
Statement ” shall have the meaning assigned thereto
in Section 2(b).
“ Exchange
Securities ” shall have the meaning assigned thereto
in Section 2(b).
“ Guarantors
” shall have the meaning assigned thereto in the Senior
Subordinated Indenture.
The term “
holder ” shall mean each of the Lenders and
other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as
such person owns any Registrable Securities.
“ Lenders
” means the Lenders (as defined in the Loan Agreement) that
may acquire Registrable Securities upon exchange of their Loans (as
defined in the Loan Agreement) as described in the initial
paragraph hereof.
“ Loan Agreement
” shall mean the Senior Subordinated Interim Loan Agreement,
dated as of September 24, 2007, (as amended and restated as of
October 24, 2007, the “Amended Senior Subordinated
Interim Loan Agreement”), as amended by the First Amendment
to the Amended Senior Subordinated Interim Loan Agreement, dated as
of June 19, 2008, among the Company, the Lenders party
thereto, the Administrative Agent and the other agents party
thereto.
“ Material Adverse
Effect ” shall have the meaning set forth in
Section 5(c).
“ Notice and
Questionnaire ” means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
“ Participating
Broker-Dealer ” means a broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as
a result of market-making or other trading activities.
The term “
person ” shall mean a corporation, limited
liability company, association, partnership, organization,
business, individual, government or political subdivision thereof
or governmental agency.
“ Registrable
Securities ” shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable
Security upon the earliest to occur of the following: (i) in
the circumstances contemplated by Section 2(b), the Security
has been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(b) ( provided that any
Exchange Security that, pursuant to the last two sentences of
Section 2(b), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5 and 6 until resale
of such Registrable Security has been effected within the 90-day
period referred to in Section 2(b)); (ii) in the
circumstances contemplated by Section 2(a) or
Section 2(c), as applicable, a Shelf Registration Statement
registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to such
effective Shelf Registration Statement; (iii) such Security is
sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed by the Company or pursuant to the Senior Subordinated
Indenture; (iv) such Security is eligible to be sold pursuant
to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
“ Registration
Default ” shall have the meaning assigned thereto in
Section 2(d).
“ Registration Default
Period ” shall have the meaning assigned thereto in
Section 2(d).
“ Registration
Expenses ” shall have the meaning assigned thereto in
Section 4.
“ Resale Period
” shall have the meaning assigned thereto in
Section 2(b).
“ Restricted
Holder ” shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405,
(ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder’s business, (iii) a
holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing
Exchange Securities and (iv) a holder that is a broker-dealer,
but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from
the Company.
“ Rule 144,
” “ Rule 405, ” “
Rule 415, ” “
Rule 424, ” “
Rule 430B ” and “
Rule 433 ” shall mean, in each case, such
rule promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from
time to time.
“ Secondary Offer
Registration Statement ” shall mean the Shelf
Registration Statement required to be filed by the Company pursuant
to Section 2(a) or Section 2(c), as applicable. As used
herein, references to a Secondary Offer Registration Statement in
the singular shall, if applicable, be deemed to be in the
plural.
“ Secondary Offer Shelf
Registration ” shall mean the filing of a Secondary
Offer Registration Statement.
“ Securities
” shall mean, collectively, the Senior Subordinated Notes to
be issued under the Senior Subordinated Indenture for delivery to
the Lenders pursuant to Section 2.14(b) of the Loan Agreement
upon exchange of Loans (as defined in the Loan Agreement) in an
equal principal amount, and securities issued in exchange therefor
or in lieu thereof pursuant to the Senior Subordinated Indenture.
Each Security is entitled to the benefit of the guarantee provided
by the Guarantors in the Senior Subordinated Indenture (the “
Guarantee ”) and, unless the context otherwise
requires, any reference herein to a “ Security
, ” an “ Exchange Security ”
or a “ Registrable Security ” shall
include a reference to the related Guarantee.
“ Securities Act
” shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder, as
the same may be amended or succeeded from time to time.
“ Senior Subordinated
Indenture ” shall mean the Senior Subordinated
Indenture, dated as of the date hereof, among the Company, the
Guarantors and Wells Fargo Bank, National Association, as Trustee,
governing the Senior Subordinated Notes, as the same may be amended
from time to time.
“ Senior Subordinated
Notes ” shall have the meaning set forth in the
preamble hereto.
“ Shelf
Registration ” shall have the meaning assigned
thereto in Section 2(a).
“ Shelf Registration
Statement ” shall have the meaning assigned thereto
in Section 2(a).
“ Suspension
Period ” shall have the meaning assigned thereto in
Section 2(a).
“ Trust Indenture
Act ” shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated by the
Commission thereunder, as the same may be amended or succeeded from
time to time.
“ Trustee
” shall mean Wells Fargo Bank, National Association, as
trustee under the Senior Subordinated Indenture, together with any
successors thereto in such capacity.
Unless the context otherwise
requires, any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may
be, of this Agreement, and the words “herein,”
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the
Securities Act .
(a) Except as set forth in
Section 2(b) below, the Company agrees to use its commercially
reasonable efforts to file under the Securities Act, no later than
180 days after the Exchange Date, one or more “shelf”
registration statements providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the
“ Shelf Registration , ” and such
registration statements, the “ Shelf Registration
Statement ”). The Company agrees to use all
commercially reasonable efforts to cause such Shelf Registration
Statement to become or be declared effective as soon thereafter as
practicable, but in any event, the Company agrees to cause the
Shelf Registration Statement to become or be declared effective no
later than 360 days after the Exchange Date. The Company agrees to
keep such Shelf Registration Statement continuously effective for a
period ending on the earlier of the second anniversary of the
Exchange Date or such time as there are no longer any Registrable
Securities outstanding. No holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder.
The Company agrees, after the Effective Time of the Shelf
Registration Statement and promptly upon the request of any holder
of Registrable Securities that is not then an Electing Holder, to
use all commercially reasonable efforts to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant to Rules 430B
and 424(b) under the Securities Act identifying such holder),
subject to Section 3(d)(iii). Notwithstanding anything to the
contrary in this Section 2(a), upon notice to the Electing
Holders, the Company may suspend the use or the effectiveness of
such Shelf Registration Statement, or extend the time period in
which it is required to file the Shelf Registration Statement, for
one or more periods of up to 90 days in the aggregate in any
12-month period (a “ Suspension Period ”)
if the Board of Directors of the Company determines that there is a
valid business purpose for suspension of the Shelf Registration
Statement; provided that the Company shall promptly notify
the Electing Holders when the Shelf Registration Statement may once
again be used or is effective.
(b) In lieu of
filing or causing to become effective a Shelf Registration
Statement pursuant to Section 2(a), the Company may elect to
file under the Securities Act, one or more registration statements
relating to an offer to exchange (such registration statements,
together, the “ Exchange Registration Statement
,” and such offer, the “ Exchange Offer
”) any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company and
guaranteed by the Guarantors, which debt securities and guarantees
are substantially identical to the Securities and the related
Guarantees, respectively (and are entitled to the benefits of a
trust indenture which is substantially identical to the Senior
Subordinated Indenture or is the Senior Subordinated Indenture and
which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain
provisions for Additional Interest contemplated in
Section 2(d) below (such new debt securities hereinafter
called “ Exchange Securities ”). If the
Company makes such election, the Company agrees to use all
commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act no later
than 360 days after the Exchange Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations
under the Exchange Act. If the Company makes such election, unless
the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company further agrees to use all
commercially reasonable efforts to (i) commence the Exchange
Offer promptly following the Effective Time of such Exchange
Registration Statement, (ii) hold the Exchange Offer open for
at least 20 Business Days in accordance with Regulation 14E
promulgated by the Commission under the Exchange Act, or longer, if
required by the federal securities laws and (iii) exchange
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn promptly following the
expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been “completed” only if: (i) the Exchange
Securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without restriction under the
Securities Act and (ii) upon the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 20 Business Days following the
commencement of the Exchange Offer. The Company agrees (x) to
include in the Exchange Registration Statement a prospectus for use
in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration
Statement effective for a period (the “ Resale
Period ”) beginning when Exchange Securities are
first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 90 th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own
any Registrable Securities. With respect to such Exchange
Registration Statement, such holders that are broker-dealers shall
have the benefit of the rights of indemnification and contribution
set forth in Subsections 6(a), (c), (d) and
(e).
(c) If the Company
elects to file and cause to become effective an Exchange
Registration Statement pursuant to Section 2(b) and
(i) on or prior to the time the Exchange Offer is completed,
existing law or Commission interpretations are changed such that
the debt securities or the related guarantees received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act,
(ii) the Effective Time of the Exchange Registration Statement
is not within 360 days following the Exchange Date and the Exchange
Offer has not been completed within 30 Business Days of such
Effective Time or (iii) any holder of Registrable Securities
notifies the Company prior to the 20 th Business Day following the
completion of the Exchange Offer that: (A) it is prohibited by
law or Commission policy from participating in the Exchange Offer,
(B) it may not resell the Exchange Securities to the public
without delivering a prospectus and the prospectus supplement
contained in the Exchange Registration Statement is not appropriate
or available for such resales or (C) it 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, in lieu
of (or, in the case of clause (iii), in addition to) conducting the
Exchange Offer contemplated by Section 2(b), file under the
Securities Act no later than 30 days after the time such obligation
to file arises (but no earlier than 360 days after the Exchange
Date) one or more Shelf Registration Statements. The Company agrees
to use all commercially reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective no later
than 90 days after such Shelf Registration Statement filing
obligation arises (but no earlier than 360 days after the Exchange
Date); provided that if at any time the Company is or
becomes a “well-known seasoned issuer” (as defined in
Rule 405) and is eligible to file an “automatic shelf
registration statement” (as defined in Rule 405), then
the Company and the Guarantors shall file the Exchange Registration
Statement in the form of an automatic shelf registration statement.
The Company agrees to use all commercially reasonable efforts to
keep such Shelf Registration Statement continuously effective for a
period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable
Securities outstanding. No holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder.
The Company agrees, after the Effective Time of the Shelf
Registration Statement and promptly upon the request of any holder
of Registrable Securities that is not then an Electing Holder, to
use all commercially reasonable efforts to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant to Rules 430B
and 424(b) under the Securities Act identifying such holder),
subject to Section 3(d)(iii). Notwithstanding anything to the
contrary in this Section 2(c), upon notice to the Electing
Holders, the Company may suspend the use or the effectiveness of
such Shelf Registration Statement, or extend the time period in
which it is required to file the Shelf Registration Statement, for
one or more Suspension Periods if the Board of Directors of the
Company determines that there is a valid business purpose for
suspension of the Shelf Registration Statement; provided
that the Company shall promptly notify the Electing Holders when
the Shelf Registration Statement may once again be used or is
effective.
(d) In the event that (i) the
Company and the Guarantors have not filed the Exchange Registration
Statement or the Shelf Registration Statement on or before the date
on which such registration statement is required to be filed
pursuant to Section 2(a), Section 2(b) or
Section 2(c), as applicable, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not
become effective or been declared effective by the Commission on or
before the date on which such registration statement is required to
become or be declared effective pursuant to Section 2(a),
Section 2(b) or Section 2(c), as applicable, or
(iii) the Exchange Offer
has not been completed within 30 Business Days
after the Effective Time of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Exchange Registration
Statement or Shelf Registration Statement required by
Section 2(a), Section 2(b) or Section 2(c) is filed
and declared effective but shall thereafter either be withdrawn by
the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except
as specifically permitted herein, including with respect to any
Shelf Registration Statement, during any applicable Suspension
Period in accordance with the last sentence of Section 2(a) or
2(c)) without being succeeded immediately by an additional
registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a “
Registration Default ” and each period during
which a Registration Default has occurred and is continuing, a
“ Registration Default Period ”), then,
as liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), additional interest (“
Additional Interest ”), in addition to the Base
Interest, shall accrue on the outstanding principal amount of the
Registrable Securities at a per annum rate of 0.25% for the first
90 days of the Registration Default Period and at a per annum rate
of 0.50% thereafter for the remaining portion of the Registration
Default Period. Additional Interest shall accrue and be payable
only with respect to a single Registration Default at any given
time, notwithstanding the fact that multiple Registration Defaults
may exist at such time. The accrual of Additional Interest shall be
the exclusive monetary remedy available to the holders of
Registrable Securities for any Registration Default.
(e) The Company shall take, and
shall cause the Guarantors to take, all actions necessary or
advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Guarantees under the
registration statement contemplated in Section 2(a),
Section 2(b) or Section 2(c), as applicable.
(f) Any reference herein to a
registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by
reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time.
3. Registration Procedures
.
If the Company and the Guarantors
file a registration statement pursuant to Section 2(a),
Section 2(b) or Section 2(c), the following provisions
shall apply:
(a) At or before the Effective Time
of the Exchange Registration or the Shelf Registration, whichever
may be first, the Company shall qualify the Senior Subordinated
Indenture under the Trust Indenture Act.
(b) In the event that such
qualification would require the appointment of a new trustee under
the Senior Subordinated Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the
Senior Subordinated Indenture.
(c) If the Company elects to file an
Exchange Registration Statement pursuant to Section 2(b), in
connection with the Company’s and the Guarantors’
obligations with respect to the registration of Exchange Securities
as contemplated by Section 2(b) (the “ Exchange
Registration ”), if applicable, the Company and the
Guarantors shall:
(i) prepare and file with the
Commission an Exchange Registration Statement on any form which may
be utilized by the Company and the Guarantors and which shall
permit the Exchange Offer and resales of Exchange Securities by
Participating Broker-Dealers during the Resale Period to be
effected as contemplated by Section 2(b), and use all
commercially reasonable efforts to cause such Exchange Registration
Statement to become effective no later than 360 days after the
Exchange Date;
(ii) promptly prepare and file with
the Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(b) and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each Participating Broker-Dealer
holding Exchange Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, as such Participating
Broker-Dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each
Participating Broker-Dealer that has requested or received copies
of the prospectus included in such Exchange Registration Statement,
and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus
or for additional information relating to such Exchange
Registration Statement or prospectus, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Exchange Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated
by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
(F) the occurrence of any event that causes the Company to
become an “ineligible issuer” as defined in
Rule 405, or (G) if at any time during the Resale Period
when a prospectus is required to be delivered under the Securities
Act, that such Exchange Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not
conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(iv) in the event that the Company
and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G), to notify any Participating
Broker-Dealers holding Exchange Securities (except as otherwise
permitted during any Suspension Period), promptly prepare and
furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(vi) use all commercially reasonable
efforts to (A) register or qualify the Exchange Securities
under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(b) no later than the
commencement of the Exchange Offer, to the extent required by such
laws, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period, (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
Participating Broker-Dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions and
(D) obtain the consent or approval of each governmental agency
or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer
and the offering and sale of Exchange Securities by Participating
Broker-Dealers during the Resale Period; provided, however,
that neither the Company nor the Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi),
(2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or other governing documents or any agreement between it
and its stockholders;
(vii) provide a CUSIP number for all
Exchange Securities, not later than the applicable Effective Time;
and
(viii) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months
after the Effective Time of such Exchange Registration Statement,
an earnings statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder); provided ,
however , that this requirement shall be deemed satisfied by
the Company’s compliance with Section 4.03 of the Senior
Subordinated Indenture.
(d) In connection with the
Company’s and the Guarantors’ obligations with respect
to any Secondary Offer Shelf Registration, the Company and the
Guarantors shall use all commercially reasonable efforts to cause
the applicable Secondary Offer Registration Statement to permit the
disposition of Registrable Securities by the holders thereof
(subject to any applicable Suspension Period) in accordance with
the intended method or methods of disposition thereof provided for
in the applicable Secondary Offer Registration Statement. In
connection therewith, the Company and the Guarantors
shall:
(i) (A) prepare and file with the
Commission, within the time periods specified in Section 2(a)
and Section 2(c) hereof, as applicable, a Secondary Offer
Registration Statement on any form which may be utilized by the
Company and the Guarantors, which shall register all of the
Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the holders of the Registrable Securities as, from
time to time, may be Electing Holders and (B) use all
commercially reasonable efforts to cause each such Secondary Offer
Registration Statement to become effective within the time periods
specified in Section 2(a) and Section 2(c) hereof, as
applicable;
(ii) mail the Notice and
Questionnaire to the holders of Registrable Securities (A) not
less than 30 days prior to the anticipated Effective Time of the
Shelf Registration Statement or (B) in the case of an
“automatic shelf registration statement” (as defined in
Rule 405), mail the Notice and Questionnaire to the holders of
Registrable Securities not later than the Effective Time of such
Shelf Registration Statement, and in any such case no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless and until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
provided, however , that holders of Registrable Securities
shall have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holder to return a
completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to
(A) take any action to name such holder as a selling
securityholder in the Shelf
Registration Statement or to enable
such holder to use the prospectus forming a part thereof for
resales of Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company and
(B) nothing in this clause (iii) shall require the
Company or the Guarantors to file a post-effective amendment to the
Shelf Registration Statement more than once in any 30-day period in
respect of filings made pursuant to Section 2(a) or once in
any 45 day period in respect of filings made pursuant to
Section 2(c); provided , however , that this
clause (B) shall not be applicable for the last 60 days that
the Shelf Registration Statement is effective;
(iv) as soon as practicable
(A) prepare and file with the Commission such amendments and
supplements to the Secondary Offer Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Secondary Offer Registration
Statement for the period specified in Section 2(a) and
Section 2(c) hereof, as applicable, and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Secondary Offer
Registration Statement and (B) furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission to the extent
such documents are not publicly available on the Commission’s
EDGAR System;
(v) comply with the provisions of
the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Secondary Offer Registration
Statement in accordance with the intended methods of disposition
provided for therein by the Electing Holders;
(vi) provide a representative of the
Electing Holders and not more than one counsel for all the Electing
Holders, in each case designated by the holders of at least a
majority in aggregate principal amount of the Registrable
Securities held by the Electing Holders at the time outstanding,
the opportunity to participate in the preparation of such Secondary
Offer Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior
to the filing of such Secondary Offer Registration Statement, and
throughout the periods specified in Section 2(a) or
Section 2(c) hereof, as applicable, make available at
reasonable times at the Company’s principal place of business
or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall
be reasonably necessary (and in the case of counsel, not violate an
attorney-client privilege, in such counsel’s reasonable
belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering on behalf of the Electing Holders shall be conducted by
one counsel designated by the holders of at least a majority in
aggregate
principal amount of the Registrable
Securities held by the Electing Holders at the time outstanding and
any managing underwriter participating in the distribution of the
Registrable Securities being sold; and provided further that
each such party shall be required to maintain in confidence and not
to disclose to any other person any information or records
reasonably designated by the Company as being confidential, until
such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such Secondary Offer
Registration Statement or otherwise), or (B) such person shall
be required so to disclose such information pursuant to a subpoena
or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Secondary Offer
Registration Statement or the prospectus included therein or in an
amendment to such Secondary Offer Registration Statement or an
amendment or supplement to such prospectus in order that such
Secondary Offer Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
(viii) promptly notify each of the
Electing Holders and any managing underwriter thereof and confirm
such advice in writing, (A) when such Secondary Offer
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Secondary Offer Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto which are relevant to the Electing Holders or any
managing underwriter, or any request by the Commission for
amendments or supplements to such Secondary
