exv10w3



 







Exhibit 10.3




Execution Copy




REGISTRATION RIGHTS AGREEMENT




dated as of April 12, 2006




by and among




PHI, INC.,




as Issuer,




the GUARANTORS




named herein, and




UBS SECURITIES LLC,




as Initial Purchaser




7.125% Senior Notes due 2013




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section 1.
	 	Definitions	 	 	1	 
	Section 2.
	 	Exchange Offer	 	 	4	 
	Section 3.
	 	Shelf Registration Statement	 	 	7	 
	Section 4.
	 	Liquidated Damages	 	 	8	 
	Section 5.
	 	Registration Procedures	 	 	9	 
	Section 6.
	 	Registration Expenses	 	 	16	 
	Section 7.
	 	Indemnification	 	 	17	 
	Section 8.
	 	Rules 144 and 144A	 	 	20	 
	Section 9.
	 	Underwritten Registrations	 	 	20	 
	Section 10.
	 	Miscellaneous	 	 	21	 






 









 






REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is dated as of April 12, 2006, by and
among PHI, INC., a Louisiana corporation (the “Company”), and each of the Guarantors (as defined
herein) (the Company and the Guarantors are referred to collectively herein as the “Issuers”), on
the one hand, and UBS SECURITIES LLC (the “Initial Purchaser”), on the other hand.



     This Agreement is entered into in connection with the Purchase Agreement, dated April 7, 2006,
by and among the Issuers and the Initial Purchaser (the “Purchase Agreement”), relating to the
offering of $150 million aggregate principal amount of the Company’s 7.125% Senior Notes due 2013
(including the guarantees thereof by the Guarantors, the “Notes”). The execution and delivery of
this Agreement is a condition to the Initial Purchaser’s obligation to purchase the Notes under the
Purchase Agreement.



     The parties hereby agree as follows:


Section 1. Definitions.




     As used in this Agreement, the following terms shall have the following meanings:



     “action” shall have the meaning set forth in Section 7(c) hereof.



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



     “Agreement” shall have the meaning set forth in the first introductory paragraph hereto.



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



     “Board of Directors” shall have the meaning set forth in Section 5 hereof.



     “Business Day” shall mean a day that is not a Legal Holiday.



     “Company” shall have the meaning set forth in the introductory paragraph hereto and shall also
include the Company’s permitted successors and assigns.



     “Commission” shall mean the Securities and Exchange Commission.



     “day” shall mean a calendar day.



     “Delay Period” shall have the meaning set forth in Section 5 hereof.



     “Effectiveness Period” shall have the meaning set forth in Section 3(b) hereof.



     “Event Date” shall have the meaning set forth in Section 4(b) hereof.



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



 









 





     “Exchange Notes” shall have the meaning set forth in Section 2(a) hereof.



     “Exchange Offer” shall have the meaning set forth in Section 2(a) hereof.



     “Exchange Offer Registration Statement” shall have the meaning set forth in Section 2(a)
hereof.



     “Guarantors” means each of the Persons executing this Agreement (as set forth on Schedule I of
the Purchase Agreement) on the date hereof and each Person who executes and delivers a counterpart
of this Agreement hereafter pursuant to Section 10(e) hereof.



     “Holder” shall mean any holder of a Registrable Note or Registrable Notes.



     “Indenture” shall mean the Indenture, dated as of April 12, 2006, by and among the Issuers and
The Bank of New York Trust Company, N.A, as trustee, pursuant to which the Notes are being issued,
as amended or supplemented from time to time in accordance with the terms thereof.



     “Initial Purchaser” shall have the meaning set forth in the first introductory paragraph
hereof.



     “Inspectors” shall have the meaning set forth in Section 5(n) hereof.



     “Issue Date” shall mean April 12, 2006, the date of original issuance of the Notes.



     “Issuers” shall have the meaning set forth in the introductory paragraph hereto.



     “Legal Holiday” shall mean a Saturday, a Sunday or a day on which banking institutions in New
York, New York are required by law, regulation or executive order to remain closed.



     “Liquidated Damages” shall have the meaning set forth in Section 4(a) hereof.



     “Losses” shall have the meaning set forth in Section 7(a) hereof.



     “NASD” shall have the meaning set forth in Section 5(s) hereof.



     “Notes” shall have the meaning set forth in the second introductory paragraph hereto.



     “Participant” shall have the meaning set forth in Section 7(a) hereof.



     “Participating Broker-Dealer” shall have the meaning set forth in Section 2(b) hereof.



     “Person” shall mean an individual, corporation, partnership, joint venture association, joint
stock company, trust, unincorporated limited liability company, government or any agency or
political subdivision thereof or any other entity.



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



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



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



     “Purchase Agreement” shall have the meaning set forth in the second introductory paragraph
hereof.



     “Records” shall have the meaning set forth in Section 5(n) hereof.



     “Registrable Notes” shall mean each Note upon its original issuance and at all times
subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange Note upon original
issuance thereof and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note, Exchange Note or Private
Exchange Note has been declared effective by the Commission and such Note, Exchange Note or such
Private Exchange Note, as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for an
Exchange Note or Exchange Notes that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note, as the case may be,
ceases to be outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or Private
Exchange Note has been sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).



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



     “Registration Statement” shall mean any appropriate registration statement of the Company
covering any of the Registrable Notes filed with the Commission under the Securities Act, and all
amendments and supplements to any 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.



     “Requesting Participating Broker-Dealer” shall have the meaning set forth in Section 2(b)
hereof.



     “Rule 144” shall mean 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 Commission 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 of such
securities being free of the registration and prospectus delivery requirements of the Securities
Act.



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     “Rule 144A” shall mean 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 Commission.



     “Rule 415” shall mean 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 Commission.



     “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.



     “Shelf Filing Event” shall have the meaning set forth in Section 2(c) hereof.



     “Shelf Registration Statement” shall have the meaning set forth in Section 3(a) hereof.



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



     “Trustee” shall mean the trustee under the Indenture and the trustee (if any) under any
indenture governing the Exchange Notes and Private Exchange Notes.



     “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.


Section 2. Exchange Offer




     (a) The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration
Statement”) within 90 days after the Issue Date with the Commission on an appropriate registration
form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (including the guarantees with
respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes
(except that the Exchange Notes shall not contain terms with respect to transfer restrictions or
Liquidated Damages upon a Registration Default), (ii) use their reasonable best efforts to cause
the Exchange Offer Registration Statement to be declared effective under the Securities Act within
210 days after the Issue Date and (iii) use their reasonable best efforts to consummate the
Exchange Offer within 240 days after the Issue Date. Upon the Exchange Offer Registration Statement
being declared effective by the Commission, the Company will offer the Exchange Notes in exchange
for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 30
days (or longer if required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders.



     Each Holder that participates in the Exchange Offer will be required to represent to the
Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange
Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no
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) it is not an affiliate of the Issuer, as defined by rule 405 of the Securities Act, or if it
is an affiliate of the Issuer, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-



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dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange
Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such Exchange Notes.




     (b) The Company and the Initial Purchaser acknowledge that the staff of the Commission has
taken the position that any broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an
“underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the Notes).



     The Company and the Initial Purchaser also acknowledge that the staff of the Commission has
taken the position that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under
the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as
the Prospectus otherwise meets the requirements of the Securities Act.



     In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting
Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective for a period of up to 180 days after
the date on which the Exchange Registration Statement is declared effective, or such longer period
if extended pursuant to the last paragraph of Section 5 hereof (such period, the “Applicable
Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified
the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange
Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in the preceding
paragraph.



     If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to participate in the
Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount
of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects
to the Exchange Notes, except that the Private Exchange Notes may be subject to transfer
restrictions and bear a legend to such effect; provided, however, that the Issuers shall not be
required to effect a Private Exchange if in the written judgment of counsel for the Issuers or
counsel for the Initial Purchaser (copies of which are delivered to the Initial Purchaser or
Holders whose request is the subject of such judgments) such Private Exchange cannot be effected



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without registration under the Securities Act. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and, if permitted by Standard & Poor’s CUSIP
Bureau, shall bear the same CUSIP number as the Exchange Notes.




     In connection with the Exchange Offer, the Company shall:




     (i) mail or cause to be mailed to each Holder entitled to participate in the Exchange
Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;




     (ii) utilize the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York if any of the Notes is then in certificated form;




     (iii) permit Holders to withdraw tendered Notes at any time prior to the close of
business, New York time, on the last Business Day on which the Exchange Offer shall remain
open; and




     (iv) otherwise comply in all material respects with all applicable laws, rules and
regulations.



     As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any,
the Company shall:




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




     (ii) deliver or cause to be delivered to the Trustee for cancellation all Notes in
certificated form so accepted for exchange; and




     (iii) cause the Trustee to deliver promptly to each Holder of Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.



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



     The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture (in either case, with such
changes as are necessary to comply with any requirements of the Commission to effect or maintain
the qualification thereof under the TIA) and which, in either case, has been qualified



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under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes
will have the right to vote or consent as a separate class on any matter.




     (c) In the event that (i) any changes in law or the applicable interpretations of the staff of
the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the
Exchange Offer is not consummated within 240 days after the Issue Date, (iii) any Holder is
prohibited by law or the applicable interpretations of the staff of the Commission from
participating in the Exchange Offer or does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws (other than due solely
to the status of such Holder as an affiliate of any Issuer) or (iv) the Initial Purchaser so
requests with respect to Notes that have, or that are reasonably likely to be determined to have,
the status of unsold allotments in an initial distribution (each such event referred to in clauses
(i) through (iv) of this sentence, a “Shelf Filing Event”), then the Issuers shall use their
reasonable best efforts to, as promptly as practicable, file a Shelf Registration Statement
pursuant to Section 3 hereof.


Section 3. Shelf Registration Statement




     If at any time a Shelf Filing Event shall occur, then:



     (a) The Issuers shall file with the Commission a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable Notes not exchanged
in the Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is
applicable (the “Shelf Registration Statement”). The Issuers shall use their reasonable best
efforts to file with the Commission the Shelf Registration Statement as promptly as practicable.
The Shelf Registration Statement shall be on an appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not permit any
securities other than the Registrable Notes to be included in the Shelf Registration Statement.



     (b) The Issuers shall use their reasonable best efforts (x) to cause the Shelf Registration
Statement to be declared effective under the Securities Act on or prior to the 240th day after the
Issue Date and (y) to use their reasonable best efforts to keep the Shelf Registration Statement
continuously effective under the Securities Act for the period ending on the date which is two
years from the Issue Date, subject to extension pursuant to the penultimate paragraph of Section 5
hereof (the “Effectiveness Period”), or such shorter period ending when all Registrable Notes
covered by the Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement; provided, however, that (i) the Effectiveness
Period in respect of the Shelf Registration Statement shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the
Securities Act and as otherwise provided herein and (ii) the Company may suspend the effectiveness
of the Shelf Registration Statement by written notice to the Holders solely as a result of the
filing of a post-effective amendment to the Shelf Registration Statement



7









 




to incorporate annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective to permit holders
to use the related Prospectus.




     (c) The Issuers agree to supplement or make amendments to the Shelf Registration Statement as
and when required by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such Registration Statement or by
any underwriter of such Registrable Notes.


Section 4. Liquidated Damages.




     (a) The Issuers and the Initial Purchaser agree that the Holders will suffer damages if the
Company fails to fulfill its obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly, the Company agrees
that if:




     (i) the Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 90th day following the Issue Date,




     (ii) the Exchange Offer Registration Statement is not declared effective on or prior to
the 210th day following the Issue Date,




     (iii) the Exchange Offer is not consummated, or the Shelf Registration Statement is not
declared effective, on or prior to the 240th day following the Issue Date, or




     (iv) the Shelf Registration Statement is declared effective but thereafter ceases to be
effective or usable, except if the Shelf Registration Statement ceases to be effective or
usable as specifically permitted in the penultimate paragraph of Section 5 hereof


(each such event referred to in clauses (1) through (4) a “Registration Default”), liquidated
damages in the form of additional cash interest (“Liquidated Damages”) will accrue on the affected
Notes and the affected Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25%
per annum for the first 90-day period immediately following the occurrence of a Registration
Default, increasing by an additional 0.25% per annum with respect to each subsequent 90-day period
up to a maximum amount of additional interest of 1.00% per annum, from and including the date on
which any such Registration Default shall occur to, but excluding, the earlier of (1) the date on
which all Registration Defaults have been cured or (2) the date on which all the Notes and Exchange
Notes otherwise become freely transferable by Holders other than affiliates of the Issuer without
further registration under the Securities Act.




     Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable shall not increase
because more than one Registration Default has occurred and is pending and (2) a Holder of Notes or
Exchange Notes who is not entitled to the benefits of the Shelf Registration Statement (i.e., such
Holder has not elected to include information) shall not be entitled to



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Liquidated Damages with respect to a Registration Default that pertains to the Shelf
Registration Statement.




     (b) The Company shall notify the Trustee within one Business Day after each and every date on
which an event occurs in respect of which Liquidated Damages are required to be paid (an “Event
Date”). Any amounts of Liquidated Damages due pursuant to this Section 4 will be payable in
addition to any other interest payable from time to time with respect to the Registrable Notes and
the Exchange Notes in cash on each interest payment date to the holders of record for such interest
payment date, commencing with the first such interest payment date occurring after any such
Liquidated Damages commence to accrue. The amount of Liquidated Damages will be determined in a
manner consistent with the calculation of interest under the Indenture.


Section 5. Registration Procedures




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



     (a) Prepare and file with the Commission the Registration Statement or Registration Statements
prescribed by Section 2 or 3 hereof, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in
the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies of any documents to
be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case
at least five Business Days prior to such filing). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto 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, their counsel, or the managing underwriters,
if any, shall reasonably object.



     (b) Prepare and file with the Commission such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may
be necessary to keep such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and the Exchange Act
applicable to each of them with respect to the disposition of all securities



9









 




covered by such Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus, in each case, in accordance with the intended methods
of distribution set forth in such Registration Statement or Prospectus, as so amended.




     (c) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period relating thereto, notify the selling
Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, as promptly as possible and, if requested by any
such Person, confirm such notice in writing (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain, at the sole expense of
the Company, one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed to be incorporated
by reference and exhibits), (ii) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers the representations
and warranties of the Issuers contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m) hereof cease to be true and correct in all material respects, (iv) of
the receipt by any of the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any of the Registrable
Notes or the Exchange Notes for offer or sale in any jurisdiction, or the initiation or threatening
of any proceeding for such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known to the Company that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (vi) of the Company’s determination that a post-effective
amendment to a Registration Statement would be appropriate.



     (d) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use their reasonable best efforts to
prevent the issuance of any order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or suspending the qualification (or




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exemption from qualification) of any of the Registrable Notes or the Exchange Notes, as the
case may be, for sale in any jurisdiction and, if any such order is issued, to use their reasonable
best efforts to obtain the withdrawal of any such order at the earliest practicable moment.




     (e) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period and, if requested by the managing
underwriter or underwriters (if any), the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement or any Participating Broker-Dealer, as
the case may be, (i) promptly incorporate in such Registration Statement or Prospectus, a
prospectus supplement or post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer, as the case may be (based
upon advice of counsel), determine is reasonably necessary to be included therein and (ii) make all
required filings of such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however, that the Issuers shall not be
required to take any action hereunder that would, in the written opinion of counsel to the Company,
violate applicable laws.



     (f) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes or each such Participating Broker-Dealer, as the case may be, who so requests,
their counsel and each managing underwriter, if any, at the sole expense of the Company, one
conformed copy of the Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.



     (g) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes or each such Participating Broker-Dealer, as the case may be, their respective
counsel and the underwriters, if any, at the sole expense of the Company, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the Issuers hereby
consent to the use of such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be,
and the underwriters or agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes or the sale by Participating Broker-Dealers of the Exchange Notes.



     (h) Prior to any public offering of Registrable Notes or Exchange Notes or any delivery of a
Prospectus contained in the Exchange Offer Registration Statement by any



11









 







Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use
their reasonable best efforts to register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or qualification) of such
Registrable Notes or Exchange Notes, as the case may be, for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request; provided, however,
that where Exchange Notes or Registrable Notes are offered other than through an underwritten
offering, the Company agrees to cause the Company’s counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such jurisdictions of such Exchange
Notes or Registrable Notes covered by the applicable Registration Statement; provided, however,
that no Issuer shall be required to (A) qualify generally to do business in any jurisdiction where
it is not then so qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.



     (i) If a Shelf Registration Statement is filed pursuant to Section 3 hereof, cooperate with
the selling Holders of Registrable Notes and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing underwriter or underwriters, if any, or
selling Holders may request at least two Business Days prior to any sale of such Registrable Notes
or Exchange Notes.



     (j) Use their reasonable best efforts to cause the Registrable Notes or Exchange Notes covered
by any Registration Statement to be registered with or approved by such other governmental agencies
or authorities as may be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such Registrable Notes or
Exchange Notes, except as may be required solely as a consequence of the nature of such selling
Holder’s business, in which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals.



     (k) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event
contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject
to Section 5(a) hereof and the penultimate paragraph of this Section 5) file with the Commission,
at the sole expense of the Company, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document



12









 







incorporated or deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will 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, in the light of the circumstances under which they were made, not
misleading.



     (l) Promptly after the consummation of the Exchange Offer or prior to the effective date of
the first Shelf Registration Statement relating to the Registrable Notes, as the case may be, (i)
provide the Trustee with certificates for the Exchange Notes or the Registrable Notes, as the case
may be, in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Exchange Notes or the Registrable Notes, as the case may be.



     (m) In connection with any underwritten offering of Registrable Notes pursuant to a Shelf
Registration Statement, enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters with respect to the
business of the Company and its subsidiaries (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt securities similar to the Notes,
and confirm the same in writing if and when requested; (ii) use their reasonable best efforts to
obtain the written opinions of counsel to the Company and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) use their reasonable best efforts to obtain “cold comfort” letters and updates
thereof in form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and covering matters of the type
customarily covered in “cold comfort” letters in connection with underwritten offerings; and (iv)
if an underwriting agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement and the managing underwriter or underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required thereunder.



13









 





     (n) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of Registrable Notes, if
any, and any attorney, accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively, the “Inspectors”),
at the offices where normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company and its subsidiaries
(collectively, the “Records”) as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by any such Inspector
in connection with such Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will not disclose any records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such
information is necessary or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and arising out of, based
upon, relating to, or involving this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder or (iv) the information in such
Records has been made generally available to the public; provided, however, that such Inspector
shall take such actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holder or any Inspector.



     (o) Provide an indenture trustee for the Registrable Notes or the Exchange Notes, as the case
may be, and cause the Indenture or the trust indenture provided for in Section 2(a) hereof to be
qualified under the TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection therewith, cooperate
with the trustee under any such indenture and the Holders of the Registrable Notes or Exchange
Notes, as applicable, 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 their
reasonable best 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 Commission to
enable such indenture to be so qualified in a timely manner.



     (p) Comply with all applicable rules and regulations of the Commission and make generally
available to the Company’s securityholders earnings statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes or Exchange Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to



14









 







underwriters in such an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which statements shall cover said
12-month periods.



     (q) Upon the request of a Holder, upon consummation of the Exchange Offer or a Private
Exchange, use their reasonable best efforts to obtain an opinion of counsel to the Company, in a
form customary for underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the Private Exchange, as the
case may be, that the Exchange Notes or Private Exchange Notes, as the case may be, and the related
indenture constitute legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its respective terms, subject to customary exceptions and
qualifications.



     (r) If the Exchange Offer or a Private Exchange is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may be, mark, or cause
to be marked, on such Registrable Notes that such Registrable Notes are being cancelled in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.



     (s) Cooperate with each seller of Registrable Notes covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the “NASD”).



     (t) Use their reasonable best efforts to take all other steps necessary or advisable to effect
the registration of the Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby.



     The Company may require each seller of Registrable Notes or Exchange Notes as to which any
registration is being effected to furnish to the Company such information regarding such seller and
the distribution of such Registrable Notes or Exchange Notes as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the Registrable Notes or
Exchange Notes of any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request. Each seller 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 any information previously furnished to the Company by such seller
not materially misleading.



     If any such Registration Statement refers to any Holder by name or otherwise as the holder of
any securities of the Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial requirements of the Company
or (ii) in the event that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the



15









 







deletion of the reference to such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to be required.



     Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by acquisition of
such Registrable Notes or Exchange Notes that, upon actual receipt of any notice from the Company
(x) of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or
5(c)(v) hereof or (y) that the Board of Directors of the Company (the “Board of Directors”) has
resolved that the Company has a bona fide business purpose for doing so, then the Company may delay
the filing or the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (if not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer Registration Statement
or the Shelf Registration Statement, in all cases, for a period (a “Delay Period”) expiring upon
the earlier to occur of (i) in the case of the immediately preceding clause (x), such Holder’s or
Participating Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or until it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto or (ii) in the case of the immediately preceding clause (y), the date which
is the earlier of (A) the date on which such business purpose ceases to interfere with the
Company’s obligations to file or maintain the effectiveness of any such Registration Statement
pursuant to this Agreement or (B) 60 days after the Company notifies the Holders of such good faith
determination. There shall not be more than 90 days of Delay Periods during any 12-month period.
Each of the Effectiveness Period and the Applicable Period, if applicable, shall be extended by the
number of days during any Delay Period. Any Delay Period will not alter the obligations of the
Company to pay Liquidated Damages under the circumstances set forth in Section 4 hereof.



     In the event of any Delay Period pursuant to clause (y) of the preceding paragraph, notice
shall be given as soon as practicable after the Board of Directors makes such a determination of
the need for a Delay Period and shall state, to the extent practicable, an estimate of the duration
of such Delay Period and shall advise the recipient thereof of the agreement of such Holder
provided in the next succeeding sentence. Each Holder, by his acceptance of any Registrable Note,
agrees that during any Delay Period, each Holder will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be.



Section 6. Registration Expenses




     All fees and expenses incident to the performance of or compliance with this Agreement by the
Issuers shall be borne by the Issuers, whether or not the Exchange Offer Registration Statement or
the Shelf Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions (x) where the holders of Registrable Notes are located, in the



16









 







case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the case of a Shelf
Registration Statement or in the case of Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses, including, without limitation, expenses of
printing prospectuses if the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal amount of the
Registrable Notes included in any Registration Statement or in respect of Exchange Notes to be sold
by any Participating Broker-Dealer during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company
and reasonable fees and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii) hereof (including,
without limitation, the expenses of any special audit and “cold comfort” letters required by or
incident to such performance), (vi) Securities Act liability insurance, if the Company desires such
insurance, (vii) fees and expenses of all other Persons retained by any of the Issuers, (viii)
internal expenses of the Issuers (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties), (ix) the expense of
any audit, (x) the fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange, and the obtaining of a rating of the securities, in each
case, if applicable, and (xi) the expenses relating to printing, word processing and distributing
all Registration Statements, underwriting agreements, indentures and any other documents necessary
in order to comply with this Agreement. Notwithstanding the foregoing or anything to the contrary,
each Holder shall pay all underwriting discounts and commissions of any underwriters with respect
to any Registrable Notes sold by or on behalf of it.



Section 7. Indemnification




     (a) Each Issuer, jointly and severally, agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents, employees, officers and
directors of any such controlling Person (each, a “Participant”) from and against any and all
losses, liabilities, claims, damages and expenses whatsoever (including, but not limited to,
reasonable attorneys’ fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, “Losses”) to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein,
in the case of the Prospectus, in the light of the circumstances under which they were made, not
misleading, provided that the foregoing indemnity shall not be available to any Participant insofar
as such Losses are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance



17









 







upon and in conformity with information relating to such Participant furnished to the Company
in writing by or on behalf of such Participant expressly for use therein. This indemnity agreement
will be in addition to any liability that the Issuers may otherwise have, including, but not
limited to, liability under this Agreement.



     (b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless each
Issuer, each Person, if any, who controls any Issuer within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their respective agents,
employees, officers and directors and the agents, employees, officers and directors of any such
controlling Person from and against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to the extent, that any
such Loss arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Company by or on behalf of such Participant expressly
for use therein.



     (c) Promptly after receipt by an indemnified party under subsection 7(a) or 7(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an “action”), such
indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify each party against whom indemnification is to be sought in writing of
the commencement of such action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have under this Section 7 except to
the extent that it has been prejudiced in any material respect by such failure). In case any such
action is brought against any indemnified party, and it notifies an indemnifying party of the
commencement of such action, the indemnifying party will be entitled to participate in such action,
and to the extent it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the defense of such action
with counsel satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own counsel in any such action, but
the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action within a reasonable
time after notice of commencement of the action, or (iii) the named parties to such action
(including any impleaded parties) include such indemnified party and the indemnifying party or
parties (or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them that are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified



18









 







party or parties), in any of which events such reasonable fees and expenses of counsel shall
be borne by the indemnifying parties. In no event shall the indemnifying party be liable for the
fees and expenses of more than one counsel (together with appropriate local counsel) at any time
for all indemnified parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general allegations or
circumstances. An indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent, which consent may not be unreasonably withheld.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by paragraph (a) or (b) of this Section 7, then the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 45 days prior notice of its
intention to settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter of such proceeding.



     (d) In order to provide for contribution in circumstances in which the indemnification
provided for in this Section 7 is for any reason held to be unavailable from the indemnifying
party, or is insufficient to hold harmless a party indemnified under this Section 7, each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such aggregate Losses (i) in such proportion as is appropriate to reflect the relative
benefits received by each indemnifying party, on the one hand, and each indemnified party, on the
other hand, from the sale of the Notes to the Initial Purchaser or the resale of the Registrable
Notes by such Holder, as applicable, or (ii) if such allocation is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of each indemnified party, on the one hand, and each indemnifying
party, on the other hand, in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. The relative benefits received by
the Issuers, on the one hand, and each Participant, on the other hand, shall be deemed to be in the
same proportion as (x) the total proceeds from the sale of the Notes to the Initial Purchaser (net
of discounts and commissions but before deducting expenses) received by the Issuers are to (y) the
total net profit received by such Participant in connection with the sale of the Registrable Notes.
The relative fault of the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or such Participant and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.



     (e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute any



19









 







amount in excess of the amount by which the net profit received by such Participant in
connection with the sale of the Registrable Notes exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action against such party in respect of which a
claim for contribution may be made against another party or parties under this Section 7, notify
such party or parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however, that no additional
notice shall be required with respect to any action for which notice has been given under this
Section 7 for purposes of indemnification. Anything in this section to the contrary
notwithstanding, no party shall be liable for contribution with respect to any action or claim
settled without its written consent, provided, that such written consent was not unreasonably
withheld.



Section 8. Rules 144 and 144A




     The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder in a timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Company is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make available such information
necessary to permit sales pursuant to Rule 144A under the Securities Act. The Issuers further
covenant that they will take such further action as any Holder of Registrable Notes may reasonably
request from time to time to enable such Holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by (a) Rule 144(k) and
Rule 144A under the Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission.



Section 9. Underwritten Registrations




     If any of the Registrable Notes covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Notes included in such offering and shall be reasonably acceptable to
the Company.



     No Holder of Registrable Notes may participate in any underwritten registration hereunder if
such Holder does not (a) agree to sell such Holder’s Registrable Notes on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements
and (b) complete and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.




20










 







Section 10. Miscellaneous




     (a) No Inconsistent Agreements. The Issuers have not, as of the date hereof, and shall not,
after the date of this Agreement, enter into any agreement with respect to any of their securities
that is inconsistent with the rights granted to the Holders of Registrable Notes in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do
not conflict with and are not inconsistent with, in any material respect, the rights granted to the
holders of any of the Issuers’ other issued and outstanding securities under any such agreements.
The Issuers have not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with respect to any
Registration Statement.



     (b) Adjustments Affecting Registrable Notes. The Company shall not, directly or indirectly,
take any action with respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.



     (c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given
except pursuant to a written agreement duly signed and delivered by (I) the Company (on behalf of
all Issuers) and (II)(A) the Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended, modified or
supplemented, and the amount of any Liquidated Damages payable hereunder may not be reduced and the
due date thereof may not be extended, except in any case pursuant to a written agreement duly
signed and delivered by each Holder and each Participating Broker-Dealer (including any Person who
was a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case may
be, disposed of pursuant to any Registration Statement) affected by any such amendment,
modification, supplement, waiver or consent. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates exclusively to the rights
of Holders of Registrable Notes whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold pursuant to such Registration Statement.



     (d) Notices. All notices and other communications (including, without limitation, any notices
or other communications to the Trustee) provided for or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, next-day air courier or facsimile:




     (i) if to a Holder of the Registrable Notes or any Participating Broker-Dealer, at the
most current address of such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture.




     (ii) if to the Issuers, at the address as follows:



21









 






PHI, Inc.

Post Office Box 90808

Municipal Airport

Lafayette, LA 70509-0808

Telephone: (337) 235-2452

Fax: (337) 206-9576

Attention: Chief Financial Officer




     (iii) if to the Initial Purchaser, at the address as follows:




UBS Securities LLC

299 Park Avenue

New York, New York 10171

Telephone: (212) 821-3000

Fax: (212) 821-6890

Attention: Syndicate Department



     All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged by the recipient’s facsimile machine, if faxed;
and on the next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.



     Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address and in the manner specified in the
Indenture.



     (e) Guarantors. So long as any Registrable Notes remain outstanding, the Issuers shall cause
each Person that becomes a guarantor of the Notes under the Indenture to execute and deliver a
counterpart to this Agreement which subjects such Person to the provisions of this Agreement as a
Guarantor. Each of the Guarantors agrees to join the Company in all of its undertakings hereunder
to effect the Exchange Offer for the Exchange Notes and the filing of any Shelf Registration
Statement required hereunder.



     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, the Holders and the Participating
Broker-Dealers; provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such successor or assign
holds Registrable Notes.



     (g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.



     (h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



22









 





     (i) GOVERNING LAW, WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH ISSUER
HEREBY AGREES ON ITS OWN BEHALF TO WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDINGS OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) WITH RESPECT TO ANY CLAIM,
COUNTER-CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.



     (j) Severability. If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.



     (k) Securities Held by the Company or Its Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes
held by the Company or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.



     (l) Third-Party Beneficiaries. Holders and beneficial owners of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this Agreement, and this
Agreement may be enforced by such Persons. No other Person is intended to be, or shall be construed
as, a third-party beneficiary of this Agreement.



     (m) Attorneys’ Fees. As between the parties to this Agreement, in any action or proceeding
brought to enforce any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover reasonable attorneys’ fees
actually incurred in addition to its costs and expenses and any other available remedy.



     (n) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture,
is intended by the parties as a final and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand and the Company on
the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest with respect to
the subject matter hereof and thereof are merged herein and replaced hereby.



23









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 	 	 
	 	 	PHI, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Michael J. McCann
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Michael J. McCann
	 

	 	 	 	Title:
	 	Chief Financial Officer, Treasurer
	 

	 	 	 	 	 	and Secretary
	 
	 	 	 	 	 	 
	 	 	INTERNATIONAL HELICOPTER TRANSPORT, INC.

PHI TECH SERVICES, INC.

AIR EVAC SERVICES, INC.

PHI AIR MEDICAL, INC.

PETROLEUM HELICOPTERS INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Michael J. McCann
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Michael J. McCann
	 

	 	 	 	Title:
	 	Vice President and Secretary
	 
	 	 	 	 	 	 
	 	 	HELICOPTER MANAGEMENT,
L.L.C.
HELICOPTER LEASING, L.L.C.
HELEX, L.L.C.
SKY LEASING,
L.L.C.







	 	 	 	 	 	 	 
	 	 	By: PHI, INC., its sole member
	 
	 	 	 	 	 	 
	 

	 	 	By: 	 	 	/s/ Michael J. McCann
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Michael J. McCann
	 

	 	 	 	Title:
	 	Chief Financial Officer, Treasurer
	 

	 	 	 	 	 	and Secretary






 









 






	 	 	 	 	 	 	 
	 	 	ACCEPTED AND AGREED to as of the date first written
above, on behalf of themselves and the other several
Initial Purchaser
	 
	 	 	 	 	 	 
	 	 	UBS SECURITIES LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Sam Pitts
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Sam Pitts
	 

	 	 	 	Title:
	 	Executive Director
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Kenneth Owen
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Kenneth Owen
	 

	 	 	 	Title:
	 	Associate Director