exv4w3



 







Exhibit 4.3




Execution Copy




$250,000,000




MANOR CARE, INC.




2% Convertible Senior Notes Due 2036




Registration Rights Agreement




May 17, 2006




J.P. Morgan Securities Inc.

      and the other several Initial Purchasers

     listed in Schedule 4 hereto

c/o J.P. Morgan Securities Inc.

277 Park Avenue

New York, New York 10172




     Ladies and Gentlemen:



          Manor Care, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to J.P.
Morgan Securities Inc. (“JPMorgan”) and the other initial purchasers named therein (collectively,
with JPMorgan, the “Initial Purchasers”), upon the terms and subject to the conditions set forth in
a purchase agreement dated May 11, 2006 (the “Purchase Agreement”), $250,000,000 aggregate
principal amount of its 2% Convertible Senior Notes due 2036 (the “Notes”) to be jointly and
severally guaranteed (the “Guarantees”) by the subsidiaries of the Company listed on Schedule 1 and
signatories hereto (collectively, the “Guarantors”). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Purchase Agreement.




          As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Company
and the Guarantors agree with the Initial Purchasers, for the benefit of the holders (including the
Initial Purchasers) of the Notes and the Shares (as defined below) (collectively, the “Holders”),
as follows:




     1. Certain Definitions.



     For purposes of this Registration Rights Agreement, the following terms shall have the
following meanings:



 









 





(a) “Additional Guarantor” shall mean any subsidiary of the Company that executes a
Subsidiary Guarantee under the Indenture after the date of this Agreement.



(b) “Additional Interest” has the meaning assigned thereto in Section 2(d).



(c) “Additional Interest Payment Date” has the meaning assigned thereto in Section
2(d).



(d) “Agreement” means this Registration Rights Agreement, as the same may be amended
from time to time pursuant to the terms hereof.



(e) “Closing Date” means the date on which any Notes are initially issued.



(f) “Commission” means the 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.



(g) “Company” has the meaning specified in the first paragraph of this Agreement.



(h) “Deferral Notice” has the meaning assigned thereto in Section 3(b).



(i) “Deferral Period” has the meaning assigned thereto in Section 3(b).



(j) “Effective Period” has the meaning assigned thereto in Section 2(a).



(k) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



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



(m) “Guarantees” has the meaning specified in the first paragraph of this Agreement.



(n) “Guarantors” shall have the meaning set forth in the preamble and shall also
include any Guarantor’s successors and any Additional Guarantors.



(o) “Holder” means each holder, from time to time, of Registrable Securities (including
the Initial Purchasers).



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(p) “Indenture” means the Indenture dated as of May 17, 2006, among the Company, the
Guarantors and U.S. Bank National Association, as Trustee pursuant to which the Notes and
the Guarantees are being issued.



(q) “Initial Placement” means the initial placement of the Notes pursuant to the terms
of the Purchase Agreement.



(r) “Initial Purchasers” has the meaning specified in the first paragraph of this
Agreement.



(s) “Issuer Information” shall have the meaning set forth in Section 6(a) hereof.



(t) “Material Event” has the meaning assigned thereto in Section 3(a)(iv).



(u) “Majority Holders” shall mean, on any date, holders of the majority of the Shares
constituting Registrable Securities; for the purposes of this definition, Holders of Notes
constituting Registrable Securities shall be deemed to be the Holders of the number of
Shares into which such Notes are or would be convertible as of such date.



(v) “NASD” shall mean the National Association of Securities Dealers, Inc.



(w) “NASD Rules” shall mean the Conduct Rules and the By-Laws of the NASD.



(x) “Notes” means the 2% Convertible Senior Notes Due 2036, to be issued under the
Indenture and sold by the Company to the Initial Purchasers.



(y) “Notice and Questionnaire” means a written notice delivered to the Company
containing substantially the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Memorandum.



(z) “Notice Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.



(aa) “Offering Memorandum” means the Offering Memorandum dated May 11, 2006 relating to
the offer and sale of the Securities.



(bb) “Person” means a corporation, association, partnership, organization, business,
individual, government or political subdivision thereof or governmental agency.




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     (cc) “Prospectus” means the prospectus included in any Shelf Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any amendment or prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated by reference in
such Prospectus.




     (dd) “Purchase Agreement” has the meaning specified in the first paragraph of this
Agreement.




     (ee) “Registrable Securities” means the Securities; provided, however, that such
Securities shall cease to be Registrable Securities when (i) in the circumstances
contemplated by Section 2(a), a registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such Securities have been sold or
otherwise transferred by the Holder thereof pursuant to such effective registration
statement; (ii) such Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed or such Securities are eligible to be sold
pursuant to Rule 144(k) or any successor provision; or (iii) such Securities shall cease to
be outstanding (including, in the case of the Notes, upon conversion into Shares).




     (ff) “Registration Default” has the meaning assigned thereto in Section 2(d).




     (gg) “Registration Expenses” has the meaning assigned thereto in Section 5.




     (hh) “Rule 144,” “Rule 405” and “Rule 415” means, in each case, such rule as
promulgated under the Securities Act.




     (ii) “Securities” means, collectively, the Notes and the Shares.




     (jj) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




     (kk) “Shares” means the shares of common stock of the Company, par value $0.01 per
share, into which the Notes are convertible or that have been issued upon any conversion
from Notes into common stock of the Company.




     (ll) “Shelf Registration Statement” means the shelf registration statement referred to
in Section 2(a), as amended or supplemented by any amendment or supplement, including
post-effective amendments, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such Shelf Registration Statement.



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     (mm) “Special Counsel” shall have the meaning assigned thereto in Section 5.




     (nn) “Subsidiary Guarantee” means, individually, any Guarantee of payment of the
Securities by a Subsidiary Guarantor pursuant to the terms of the Indenture and any
supplemental indenture thereto (including pursuant to Exhibit B to the Indenture), and,
collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the form
prescribed by the Indenture.




     (oo) “Trust Indenture Act” means the Trust Indenture Act of 1939, or any successor
thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall
be amended from time to time.




     (pp) “Trustee” shall have the meaning assigned such term in the Indenture.



     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. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute, rule or regulation
thereto) as it may be amended from time to time.



     2. Registration Under the Securities Act.




     (a) The Company and the Guarantors agree to file under the Securities Act as promptly
as practicable but in any event within 90 days after the Closing Date a shelf registration
statement 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. The Company and the Guarantors agree to use
their reasonable efforts to cause the Shelf Registration Statement to become effective
within 180 days after the Closing Date and to keep such Shelf Registration Statement
continuously effective until the earlier of (i) the second anniversary of the Closing Date
or (ii) such time as there are no longer any Registrable Securities outstanding (the
“Effective Period”). None of the Company’s securityholders or the Guarantors’
securityholders (other than Holders of Registrable Securities) shall have the right to
include any of the Company’s securities or the Guarantors’ securities in the Shelf
Registration Statement.




     (b) The Company and the Guarantors further agree that they shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement or such amendment or
supplement, (i) to comply in all material respects with the applicable requirements of the
Securities Act; and (ii)



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not to contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company and the Guarantors agree to furnish to the Holders of the
Registrable Securities copies of any supplement or amendment prior to its being used or
promptly following its filing with the Commission; provided, however, that the Company shall
have no obligation to deliver to Holders of Registrable Securities copies of any amendment
consisting exclusively of an Exchange Act report or other Exchange Act filing otherwise
publicly available on the Company’s website. If the Shelf Registration Statement, as
amended or supplemented from time to time, ceases to be effective for any reason at any time
during the Effective Period (other than because all Registrable Securities registered
thereunder shall have been sold pursuant thereto or shall have otherwise ceased to be
Registrable Securities), the Company and the Guarantors shall use their reasonable best
efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.




     (c) Each Holder of Registrable Securities agrees that if such Holder wishes to sell
Registrable Securities pursuant to the Shelf Registration Statement and related Prospectus,
it will do so only in accordance with this Section 2(c) and Section 3(b). From and after
the date the Shelf Registration Statement is declared or becomes effective, the Company and
the Guarantors shall, as promptly as is practicable after the date a Notice and
Questionnaire is delivered, and in any event within five (5) Business Days after such date,




     (i) if required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling security holder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with applicable
law and, if the Company and the Guarantors shall file a post-effective amendment to
the Shelf Registration Statement, use their reasonable efforts to cause such
post-effective amendment to be declared or to otherwise become effective under the
Securities Act as promptly as is practicable;




     (ii) provide such Holder copies of any documents filed pursuant to Section
2(c)(i); and




     (iii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to Section
2(c)(i);



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provided that the Company shall not be required to make more than one such filing in any
calendar quarter in the form of a post-effective amendment to the Shelf Registration
Statement; provided, further, that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(b). Notwithstanding anything
contained herein to the contrary, the Company and the Guarantors shall be under no
obligation to name any Holder that is not a Notice Holder as a selling securityholder in any
Shelf Registration Statement or related Prospectus; provided, however, that any Holder that
becomes a Notice Holder pursuant to the provisions of this Section 2(c) (whether or not such
Holder was a Notice Holder at the time the Shelf Registration Statement was declared or
otherwise became effective) shall be named as a selling securityholder in the Shelf
Registration Statement or related Prospectus in accordance with the requirements of this
Section 2(c).




     (d) If any of the following events (any such event a “Registration Default”) shall
occur, then additional interest (the “Additional Interest”) shall become payable jointly and
severally by the Company and the Guarantors to Holders in respect of the Notes as follows:




     (i) if the Shelf Registration Statement is not filed with the Commission within
90 days following the Closing Date, then commencing on the 91st day after the
Closing Date, Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of 0.25% per annum for
the first 90 days following such 91st day and at a rate of 0.50% per
annum thereafter; or




     (ii) if the Shelf Registration Statement is not declared effective and does not
otherwise become effective within 180 days following the Closing Date, then
commencing on the 181st day after the Closing Date, Additional Interest
shall accrue on the principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days following such
181st day and at a rate of 0.50% per annum thereafter; or




     (iii) if the Company or the Guarantors have failed to perform their obligations
set forth in Section 2(c) hereof within the time periods required therein, then
commencing on the first day after the date by which the Company and the Guarantors
were required to perform such obligations, Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days and at a rate of 0.50% per annum
thereafter;




     (iv) if the Shelf Registration Statement has been declared effective or has
otherwise become effective but such Shelf Registration



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Statement ceases to be effective at any time during the Effective Period (other
than pursuant to Section 3(b) hereof), then commencing on the day such Shelf
Registration Statement ceases to be effective, Additional Interest shall accrue on
the principal amount of the outstanding Notes that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days following such date on which the Shelf
Registration Statement ceases to be effective and at a rate of 0.50% per annum
thereafter; or




     (v) if the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period pursuant to Section 3(b) hereof,
then commencing on the day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period), Additional Interest
shall accrue on the principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days and at a rate of 0.50%
per annum thereafter;




provided, however, that the Additional Interest rate on the Notes shall not exceed in the
aggregate 0.50% per annum and shall not be payable under more than one clause above for any
given period of time, except that if Additional Interest would be payable under more than
one clause above, but at a rate of 0.25% per annum under one clause and at a rate of 0.50%
per annum under the other, then the Additional Interest rate shall be the higher rate of
0.50% per annum; provided further, however, that (1) upon the filing of the Shelf
Registration Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Shelf Registration Statement (in the case of clause (ii) above), (3) upon the performance by
the Company and the Guarantors of their obligations set forth in Section 2(c) hereof within
the time periods required therein (in the case of clause (iii) above), (4) upon the
effectiveness of the Shelf Registration Statement which had ceased to remain effective (in
the case of clause (iv) above), (5) upon the termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in Section
3(b) to be exceeded (in the case of clause (v) above) or (6) upon the termination of certain
transfer restrictions on the Securities as a result of the application of Rule 144(k) or any
successor provision, Additional Interest on the Notes as a result of such clause, as the
case may be, shall cease to accrue.




     Additional Interest on the Notes, if any, will be payable in cash on June 1 and
December 1 of each year (the “Additional Interest Payment Date”) to holders of record of
outstanding Notes that are Registrable Securities on each preceding May 15 and November 15;
provided that in the case of an event of the type described in clause (iii) above, such
Additional Interest shall be paid only to the Holders that have delivered Notice and
Questionnaires that caused the Company and the Guarantors to incur the obligations set forth
in Section 2(c), the



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non-performance of which is the basis of such Registration Default; provided further that
any Additional Interest accrued with respect to any Notes or portion thereof called for
redemption on a redemption date or converted into Shares on a conversion date prior to the
Registration Default shall, in any such event, be paid instead to the Holder who submitted
such Notes or portion thereof for redemption or conversion on the applicable redemption date
or conversion date, as the case may be, on such date (or promptly following the conversion
date, in the case of conversion). Following the cure of all Registration Defaults requiring
the payment of Additional Interest to the Holders of Notes that are Registrable Securities
pursuant to this Section, the accrual of Additional Interest will cease (without in any way
limiting the effect of any subsequent Registration Default requiring the payment of
Additional Interest).




          The Company shall notify the Trustee immediately upon the happening of each and every
Registration Default. The Trustee shall be entitled, on behalf of Holders of Securities, to
seek any available remedy for the enforcement of this Agreement, including for the payment
of any Additional Interest. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement with respect to
which additional monetary amounts are expressly provided shall be as set forth in this
Section 2(d). Nothing shall preclude a Notice Holder or Holder of Registrable Securities
from pursuing or obtaining specific performance or other equitable relief with respect to
this Agreement.




     (e) . A Shelf Registration Statement pursuant to this Section 2 will not be deemed to
have become effective unless it has been declared effective by the SEC or is automatically
effective upon filing with the SEC as provided by Rule 462 under the Securities Act.



     3. Registration Procedures.



     The following provisions shall apply to the Shelf Registration Statement filed pursuant to
Section 2:




     (a) The Company and the Guarantors shall:




     (i) prepare and file with the Commission a registration statement with respect
to the shelf registration on any form which may be utilized by the Company and the
Guarantors and which shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified in writing by
the Holders of the Registrable Securities, and use their reasonable efforts to cause
such registration statement to become effective in accordance with Section 2(a)
above;



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     (ii) before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the Commission, furnish to the Initial
Purchasers copies of all such documents proposed to be filed and use reasonable
efforts to reflect in each such document when so filed with the Commission such
comments as the Initial Purchasers reasonably shall propose within three (3)
Business Days of the delivery of such copies to the Initial Purchasers;




     (iii) use their reasonable efforts to prepare and file with the Commission such
amendments and post-effective amendments to the Shelf Registration Statement and
file with the Commission any other required document as may be necessary to keep
such Shelf Registration Statement continuously effective until the expiration of the
Effective Period; cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the disposition of
all Securities covered by such Shelf Registration Statement during the Effective
Period in accordance with the intended methods of disposition by the sellers thereof
set forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented;




     (iv) promptly notify the Notice Holders of Registrable Securities (A) when such
Shelf Registration Statement or the Prospectus included therein or any amendment or
supplement to the Prospectus or post-effective amendment has been filed with the
Commission, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any request,
following the effectiveness of the Shelf Registration Statement, by the Commission
or any other Federal or state governmental authority for amendments or supplements
to the Shelf Registration Statement or related Prospectus or for additional
information, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or written
threat of any proceedings for that purpose, including the receipt by the Company of
any notice of objection of the Commission to the use of a Shelf Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act, (D) of the receipt by the Company or any Guarantor of any
notification with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or written threat of any
proceeding for such purpose, (E) of the occurrence of (but not the nature of or
details concerning) any event or the existence of any fact (a “Material Event”) as a
result of which any Shelf Registration Statement shall contain any untrue statement
of a material fact or omit to



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state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall 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 (provided, however, that no
notice by the Company shall be required pursuant to this clause (E) in the event
that the Company either promptly files a prospectus supplement to update the
Prospectus or a Form 8-K or other appropriate Exchange Act report that is
incorporated by reference into the Shelf Registration Statement, which, in either
case, contains the requisite information with respect to such Material Event that
results in such Shelf Registration Statement no longer containing any untrue
statement of material fact or omitting to state a material fact necessary to make
the statements contained therein not misleading), (F) of the determination by the
Company that a post-effective amendment to the Shelf Registration Statement will be
filed with the Commission, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(b)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required to be delivered under the Securities Act, that the Shelf
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 and the rules and
regulations of the Commission thereunder;




     (v) prior to any public offering of the Registrable Securities pursuant to the
Shelf Registration Statement, use their reasonable best efforts to register or
qualify, or cooperate with the Notice Holders of Securities included therein and
their respective counsel in connection with the registration or qualification of,
such Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Notice Holders reasonably requests in writing and do any
and all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by the Shelf Registration Statement;
prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effective Period in
connection with such Notice Holder’s offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth in the
Shelf Registration Statement and the related Prospectus; provided that the Company
and the Guarantors will not be required to qualify generally to do business in any



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jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject;




     (vi) use its reasonable best efforts to prevent the issuance of, and if issued,
to obtain the withdrawal of any order suspending the effectiveness of the Shelf
Registration Statement or, in the event of an objection of the SEC pursuant to Rule
401(g)(2), promptly file an amendment to such Shelf Registration Statement on the
proper form, and to lift any suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in each case at the earliest practicable date;




     (vii) upon reasonable notice, for a reasonable period prior to the filing of
the Shelf Registration Statement, and throughout the Effective Period, (i) make
reasonably available for inspection by a representative of, and Special Counsel
acting for, Majority Holders of the Securities being sold and any underwriter (and
its counsel) participating in any disposition of Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and (ii) use
reasonable best efforts to have their officers, directors, employees, accountants
and counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter in connection with such
Shelf Registration Statement;




     (viii) if requested by Majority Holders of the Securities being sold in an
underwriting, their Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement, use their reasonable best efforts
to cause (i) their counsel to deliver an opinion relating to the Shelf Registration
Statement and the Securities in customary form, (ii) their officers to execute and
deliver all customary documents and certificates requested by the Majority Holders
of the Securities being sold, their Special Counsel or the managing underwriters (if
any) and (iii) their independent registered public accounting firm to provide a
letter confirming that they are an independent registered public accounting firm
within the rules and regulations adopted by the SEC and the Public Accounting
Oversight Board (United States) and as required by the Securities Act, substantially
in the form of the letter delivered to the Initial Purchasers pursuant to Section
5(j) of the Purchase Agreement, with, in the case of an amendment or supplement that
includes audited financial information, such changes as may be necessary to reflect
the amended or supplemented financial information.




     (ix) if reasonably requested by the Initial Purchasers or any Notice Holder,
promptly incorporate in a prospectus supplement or post-



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effective amendment to the Shelf Registration Statement such information as the
Initial Purchasers or such Notice Holder shall, on the basis of a written opinion of
nationally-recognized counsel experienced in such matters, determine to be required
to be included therein by applicable law and make any required filings of such
prospectus supplement or such post-effective amendment; provided, that the Company
shall not be required to take any actions under this Section 3(a)(ix) that are not,
in the reasonable opinion of counsel for the Company, in compliance with applicable
law;




     (x) promptly furnish to each Notice Holder and the Initial Purchasers, upon
their request and without charge, at least one (1) conformed copy of the Shelf
Registration Statement and any amendments thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits; provided, however, that the Company shall
have no obligation to deliver to Notice Holders or Initial Purchasers a copy of any
amendment consisting exclusively of an Exchange Act report or other Exchange Act
filing otherwise publicly available on the Company’s website;




     (xi) during the Effective Period, deliver to each Notice Holder in connection
with any sale of Registrable Securities pursuant to the Shelf Registration
Statement, without charge, as many copies of the Prospectus relating to such
Registrable Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such Notice Holder may reasonably request; and the Company
hereby consents (except during such periods that a Deferral Notice is outstanding
and has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder in connection with any offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein; and




     (xii) cooperate with the Notice Holders of Securities to facilitate the timely
preparation and delivery of certificates representing Securities to be sold pursuant
to the Shelf Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders thereof may request in
writing at least two business days prior to sales of Securities pursuant to such
Shelf Registration Statement.




     (b) Upon (A) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of proceedings with
respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (B) the occurrence of any event or the existence of any Material Event as a result of
which the Shelf Registration Statement shall



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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, or
any Prospectus shall 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, or (C) the
occurrence or existence of any corporate development that, in the discretion of the Company,
makes it appropriate to suspend the availability of the Shelf Registration Statement and the
related Prospectus, the Company will (i) in the case of clause (B) above, subject to the
third sentence of this provision, as promptly as is practicable prepare and file a
post-effective amendment to such Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does 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 such Prospectus does 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, as thereafter delivered (or, to
the extent permitted by law, made available) to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment to the Shelf
Registration Statement, subject to the third sentence of this provision, use reasonable
efforts to cause it to be declared effective or otherwise become effective as promptly as is
practicable, and (ii) give notice to the Notice Holders that the availability of the Shelf
Registration Statement is suspended (a “Deferral Notice”). Upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the
Shelf Registration Statement until such Notice Holder’s receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or until it is advised
in writing by the Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial to or contrary to
the interests of the Company or, if necessary to avoid unreasonable burden or expense, as
soon as practicable thereafter and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate; provided that the
period during which the availability of the Shelf Registration Statement and any Prospectus
is suspended (the “Deferral Period”), without the Company incurring any obligation to pay
Additional Interest pursuant to Section 2(d), shall



14









 






not exceed one hundred and twenty (120) days in the aggregate in any twelve (12) month
period.




     (c) Each Holder of Registrable Securities agrees that upon receipt of any Deferral
Notice from the Company, such Holder shall forthwith discontinue (and cause any placement or
sales agent or underwriters acting on their behalf to discontinue) the disposition of
Registrable Securities pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such amended or supplemented
Prospectus and, if so directed by the Company, such Holder shall deliver to the Company (at
the Company’s expense) all copies, other than permanent file copies, then in such Holder’s
possession of the Prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company that the disposition of
Registrable Securities pursuant to the Shelf Registration may continue.




     (d) The Company and the Guarantors shall, so long as any Registrable Securities remain
outstanding, cause each Additional Guarantor upon the creation or acquisition by the Company
of such Additional Guarantor, to (i) execute and deliver a supplemental indenture to the
Indenture in the form attached to the Indenture as Exhibit B and (ii) deliver to the Trustee
an opinion of counsel to the effect that (A) the supplemental indenture has been duly
executed and authorized and (B) the supplemental indenture constitutes a valid, binding and
enforceable obligation of such Subsidiary, except insofar as enforcement thereof may be
limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws
relating to fraudulent transfers) and except insofar as enforcement thereof is subject to
general principles of equity




     (e) The Company may require each Holder of Registrable Securities as to which any
registration pursuant to Section 2(a) is being effected to furnish to the Company such
information regarding such Holder and such Holder’s intended method of distribution of such
Registrable Securities as the Company may from time to time reasonably request in writing,
but only to the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such Holder to the Company
or of the occurrence of any event in either case as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder’s intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such Holder or such
Holder’s intended method of disposition of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading, and promptly to furnish
to the Company any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall



15









 






not contain, with respect to such Holder or the disposition of such Registrable
Securities, 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.




     (f) The Company shall comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders earning statements (which
need not be audited) 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) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of the Shelf Registration
Statement, which statements shall cover said 12-month periods.




     (g) The Company shall provide a CUSIP number for all Registrable Securities covered by
the Shelf Registration Statement not later than the initial effective date of such Shelf
Registration Statement and provide the Trustee for the Notes and the transfer agent for the
Shares with printed certificates for the Registrable Securities that are in a form eligible
for deposit with The Depository Trust Company.




     (h) The Company shall use its reasonable efforts to provide such information as is
required for any filings required to be made with the National Association of Securities
Dealers, Inc.




     (i) Until the expiration of two years after the Closing Date, the Company will not, and
will not permit any of its “affiliates” (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.




     (j) The Company shall cause the Indenture to be qualified under the Trust Indenture Act
in a timely manner.




     (k) The Company shall enter into such customary agreements and take all such other
necessary and lawful actions in connection therewith (including those requested by the
Majority Holders of the Registrable Securities covered by the Shelf Registration Statement)
in order to expedite or facilitate disposition of such Registrable Securities.



     4. Holder’s Obligations.



     Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of
Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to the
Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as



16









 




required pursuant to Section 2(c) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Shelf Registration Statement under applicable law or
pursuant to Commission comments. Each Holder further agrees not to sell any Registrable Securities
pursuant to the Shelf Registration Statement without delivering, or causing to be delivered, a
Prospectus to the purchaser thereof and, following termination of the Effective Period, to notify
the Company, within 10 Business Days of a request by the Company, of the amount of Registrable
Securities sold pursuant to the Shelf Registration Statement and, in the absence of a response, the
Company may assume that all of the Holder’s Registrable Securities were so sold.




     5. Registration Expenses.



     The Company agrees to bear and to pay or cause to be paid promptly upon request being made
therefor all expenses incident to the Company’s performance of or compliance with this Agreement,
including, but not limited to, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and Blue Sky laws referred to in Section 3(a)(v)
hereof, including reasonable fees and disbursements of one counsel for the placement agent or
underwriters, if any, in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of the Shelf Registration Statement, the
related Prospectus and each amendment or supplement to each of the foregoing, the certificates
representing the Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar and transfer agent
for the Shares, (e) fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or “cold comfort” letters
required by or incident to such performance and compliance) and (f) reasonable fees, disbursements
and expenses of not more than one counsel for the Holders of Registrable Securities retained in
connection with the Shelf Registration Statement, as selected by the Company (unless reasonably
objected to by the Majority Holders of the Registrable Securities being registered, in which case
the Majority Holders shall select such counsel for the Holders)(“Special Counsel”), and fees,
expenses and disbursements of any other Persons, including special experts, retained by the Company
in connection with such registration (collectively, the “Registration Expenses”). To the extent
that any Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any underwriter or placement agent therefor, the Company shall reimburse such Person
for the full amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all



17









 




underwriting discounts and commissions and placement agent fees and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any counsel or other advisors
or experts retained by such Holders (severally or jointly), other than the counsel and experts
specifically referred to above.




     6. Indemnification.




     (a) The Company and each of the Guarantors shall jointly and severally indemnify and
hold harmless each Holder (including, without limitation, any such Initial Purchaser), its
affiliates, their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls such Holder within the meaning of the Securities Act or
the Exchange Act (collectively referred to for purposes of this Section 6 and Section 7 as a
Holder) from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any loss, claim, damage, liability
or action relating to purchases and sales of Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any such
Registration Statement, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information”
(“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the
Securities Act or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall reimburse
each Holder promptly upon demand for any legal or other expenses reasonably incurred by that
Holder in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the Company and
the Guarantors shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents in reliance
upon and in conformity with any information provided by a Holder in its most recent Notice
and Questionnaire; and provided, further, that with respect to any such untrue statement in
or omission from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the person
asserting any such loss, claim, damage, liability or action received Securities to the
extent that such loss, claim, damage, liability or action of or with respect to such Holder
results from the fact that both (A) a copy of the final prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such Securities to such
person and (B) the untrue statement in or omission



18









 






from the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final Prospectus was a result of non-compliance
by the Company or any Guarantor with Section 4. This indemnity agreement shall be in
addition to any liability that the Company or the Guarantor may otherwise have.




     The Company and the Guarantors also shall jointly and severally indemnify and hold
harmless as provided in this Section 6(a) or contribute as provided in Section 7 hereof with
respect to any loss, claim, damage, liability or action of each underwriter, if any, of
Securities registered under the Shelf Registration Statement, its affiliates, their
respective officers, directors, employees, representatives and agents, and each person, if
any, who controls such underwriter within the meaning of the Securities Act or the Exchange
Act on substantially the same basis as that of the indemnification of the selling Holders
provided in this paragraph (a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement.




     (b) Each Holder shall indemnify and hold harmless the Company, each Guarantor and their
respective affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company or any Guarantor within the
meaning of the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6(b) and Section 7 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the Company may
become subject, whether commenced or threatened, under the Securities Act, the Exchange Act,
any other federal or state statutory law or regulation, at common law or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any information furnished to the
Company by such Holder in its most recent Notice and Questionnaire, and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Securities pursuant to such Shelf Registration Statement. This indemnity
agreement will be in addition to any liability which any such Holder may otherwise have.



19









 






     (c) Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party pursuant to Section 6(a) or
6(b), notify the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the right to employ
its own counsel in any such action, but the fees, expenses and other charges of such counsel
for the indemnified party will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel reasonably satisfactory to the indemnified party to assume the defense of
such action within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is understood that
the indemnifying party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any local counsel)
at any one time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any settlement of any such
action effected



20









 






without its written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or judgment or if
the indemnifying party has not paid the expenses and fees for which it is liable 20 days
after notice by the indemnified party of request for reimbursement. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent shall not
be unreasonably withheld), 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 (i) includes an
unconditional release of such indemnified party from all liability on claims that are the
subject matter of such proceeding and (ii) does not include a statement or admission of
fault, culpability or a failure to act, by or on behalf of the indemnified party.




     (d) The provisions of this Section 6 and Section 7 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the Company, the
Guarantors or any of the indemnified Persons referred to in this Section 6 and Section 7,
and shall survive the sale by a Holder of securities covered by the Shelf Registration
Statement.




     7. Contribution.



     If the indemnification provided for in Section 6 is unavailable or insufficient to hold
harmless an indemnified party under Section 6(a) or 6(b), then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received
by the Company and the Guarantors from the offering and sale of the Notes, on the one hand, and a
Holder with respect to the sale by such Holder of Securities, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and each of the Guarantors on the one hand and such Holder on the
other with respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company and each of the Guarantors on the one hand and a
Holder on the other with respect to such offering and such sale shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before deducting expenses)
received by or on behalf of the Company and each of the Guarantors, on the one hand, and the total
discounts and commissions received by such Holder with respect to the Securities, on the other,
bear to the total gross proceeds from the sale of Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue



21









 




statement of a material fact or the omission or alleged omission to state a material fact relates
to the Company and each of the Guarantors or information supplied by the Company and each of the
Guarantors on the one hand or to any information contained in the relevant Notice and Questionnaire
supplied by such Holder on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
parties hereto agree that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7 shall be deemed to include, for purposes of
this Section 7, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is a Holder of
Securities shall not be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 7 are several
and not joint.




     8. Rule 144A and Rule 144.



     So long as any Restricted Securities remain outstanding, the Company shall use its reasonable
best efforts to file the reports required to be filed by it under Rule 144A(d)(4) under the
Securities Act and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder of Restricted
Securities, make publicly available other information so long as necessary to permit sales of such
Holder’s securities pursuant to Rules 144 and 144A. The Company and the Guarantors covenant that
they will take such further action as any Holder of Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell Restricted Securities
without registration under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Restricted Securities, the Company and the Guarantors shall
deliver to such Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.



22









 





     9. Miscellaneous.



          (a) 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, unless the Company has obtained the written consent of Majority Holders. 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 whose Securities are being sold pursuant to the
Shelf Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of a majority in aggregate amount of the Securities being sold by
such Holders pursuant to the Shelf Registration Statement.




          (b) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing
next-day delivery:





     (1) If to the Company or the Guarantors, initially at the address set forth in
the Purchase Agreement;




     (2) If to the Initial Purchasers, initially at their respective addresses set
forth in the Purchase Agreement; and




     (3) If to a Holder, to the address of such Holder set forth in the security
register, the Notice and Questionnaire or other records of the Company.



          All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; one business day after being delivered to a next-day air courier;
five business days after being deposited in the mail; and when receipt is acknowledged by the
recipient’s telecopier machine, if sent by telecopier.




          (c) Successors And Assigns. This Agreement shall be binding upon the Company, the
Guarantors and their respective successors and assigns.




          (d) Counterparts. This Agreement may be executed in any number of counterparts (which
may be delivered in original form or by telecopier) 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.




          (e) Definition of Terms. For purposes of this Agreement, (a) the term “business day”
means any day on which the New York Stock Exchange, Inc. is open for trading, (b) the term
“subsidiary” has the meaning set forth in Rule 405 under the Securities Act and (c) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the
Securities Act.




23









 








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




          (g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.




          (h) Remedies. In the event of a breach by the Company or any of the Guarantors or by
any Holder of any of their respective obligations under this Agreement, each Holder or the Company
or any Guarantor, as the case may be, in addition to being entitled to exercise all rights granted
by law, including recovery of damages (other than the recovery of damages for a breach by the
Company or any Guarantor of their obligations under Section 2 hereof for which Additional Interest
have been paid pursuant to Section 3 hereof), will be entitled to specific performance of its
rights under this Agreement. The Company, each Guarantor and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that a remedy at law
would be adequate.




          (i) No Inconsistent Agreements. Each of the Company and each Guarantor represents,
warrants and agrees that (i) it has not entered into, shall not, on or after the date of this
Agreement, enter into any agreement that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration rights with respect to
any of its debt securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate principal amount
of the then outstanding Restricted Securities, it shall not grant to any person the right to
request the Company to register any debt securities of the Company under the Securities Act unless
the rights so granted are not in conflict or inconsistent with the provisions of this Agreement.




          (j) No Piggyback on Registrations. Neither the Company nor the Guarantors nor any of
its security holders (other than the Holders of Restricted Securities in such capacity) shall have
the right to include any securities of the Company in any Shelf Registration Statement other than
Restricted Securities.




          (k) Severability. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law. 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 reasonable 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




24









 







executed the remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.




          (l) Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results thereof) made by or on
behalf of any Holder of Registrable Securities, any director, officer or partner of such Holder,
any agent or underwriter or any director, officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by
such Holder.




          (m) Securities Held by the Company, etc. Whenever the consent or approval of Holders
of a specified percentage of Securities is required hereunder, Securities held by the Company or
its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed
to be affiliates solely by reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such required percentage.




25









 









          If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us a counterpart hereof, whereupon this instrument will become a binding agreement among
the Company, the Guarantors and the several Initial Purchasers in accordance with its terms.




	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	MANOR CARE, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Cavanaugh
	 

	 	 	 	 
	 	 	Name: Steven M. Cavanaugh
	 	 	Title: Vice President and Chief Financial Officer
	 
	 	 	 	 
	 	 	GUARANTORS
	 	 	(as set forth on Schedule 1 hereto)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Richard A. Parr
	 

	 	 	 	 
	 	 	Name: Richard A. Parr
	 	 	Title: Attorney-in-Fact on behalf of the
	 	 	GUARANTORS Listed in Schedule 1 hereto






26









 






	 	 	 	 	 	 	 	 	 
	Accepted: May 17, 2006	 	 
	 
	 	 	 	 	 	 	 	 
	J.P. MORGAN SECURITIES INC.	 	 
	 	 	and the other several Initial Purchasers

listed in Schedule 4 to the Purchase Agreement	 	 
	 
	 	 	 	 	 	 	 	 
	By: J.P. MORGAN SECURITIES INC.,	 	 
	 

	 	 	 	 	 	Acting on behalf of itself	 	 
	 

	 	 	 	 	 	and as Representative of the	 	 
	 

	 	 	 	 	 	Initial Purchasers	 	 
	 
	 

	 	 	 	By:
	 	/s/ Paul A. O’Hern	 	 
	 

	 	 	 	 	 	 

Authorized Signatory
	 	 






 









 






SCHEDULE 1




GUARANTORS




AMERICAN HOSPITAL BUILDING CORPORATION

AMERICAN REHABILITATION GROUP, INC.

AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, INC.

AMERICANA HEALTHCARE CORPORATION OF GEORGIA

ANCILLARY SERVICES MANAGEMENT, INC.

ANCILLARY SERVICES, LLC

ANNANDALE ARDEN, LLC

BAILY NURSING HOME, INC.

BAINBRIDGE ARDEN, LLC

BATH ARDEN, LLC

BINGHAM FARMS ARDEN, LLC

BIRCHWOOD MANOR, INC.

BOOTH LIMITED PARTNERSHIP

CANTERBURY VILLAGE, INC.

CHARLES MANOR, INC.

CHESAPEAKE MANOR, INC.

CLAIRE BRIDGE OF ANDERSON, LLC

CLAIRE BRIDGE OF AUSTIN, LLC

CLAIRE BRIDGE OF KENWOOD, LLC

CLAIRE BRIDGE OF SAN ANTONIO, LLC

CLAIRE BRIDGE OF SUSQUEHANNA, LLC

CLAIRE BRIDGE OF WARMINSTER, LLC

COLEWOOD LIMITED PARTNERSHIP

COLONIE ARDEN, LLC

COMMONWEALTH PHYSICAL THERAPY AND REHABILITATION, INC.

CRESTVIEW HILLS ARDEN, LLC

DEKALB HEALTHCARE CORPORATION

DEVON MANOR CORPORATION

DISTCO, INC.

DIVERSIFIED REHABILITATION SERVICES, INC.

DONAHOE MANOR, INC.

EAST MICHIGAN CARE CORPORATION

EXECUTIVE ADVERTISING, INC.

EYE-Q NETWORK, INC.

FIRST LOUISVILLE ARDEN, LLC

FOUR SEASONS NURSING CENTERS, INC.

FRESNO ARDEN, LLC

GENEVA ARDEN, LLC

GEORGIAN BLOOMFIELD, INC.

GREENVIEW MANOR, INC.

HANOVER ARDEN, LLC




 









 





HCR HOME HEALTH CARE AND HOSPICE, INC.

HCR INFORMATION CORPORATION

HCR MANOR CARE SERVICES, INC. (f/k/a Heartland Care Partners, Inc.)

HCR MANORCARE MEDICAL SERVICES OF FLORIDA, INC.

HCR PHYSICIAN MANAGEMENT SERVICES, INC.

HCR REHABILITATION CORP.

HCRA OF TEXAS, INC.

HCRC INC.

HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA

HEARTLAND CARE, LLC

HEARTLAND EMPLOYMENT SERVICES, LLC

HEARTLAND HOME CARE, INC.

HEARTLAND HOME HEALTH CARE SERVICES, INC.

HEARTLAND HOSPICE SERVICES, INC.

HEARTLAND INFORMATION SERVICES, INC. (f/k/a Heartland Medical Information Services, Inc.)

HEARTLAND MANAGEMENT SERVICES, INC.

HEARTLAND REHABILITATION SERVICES OF FLORIDA, INC.

HEARTLAND REHABILITATION SERVICES OF NEW JERSEY, INC.

HEARTLAND REHABILITATION SERVICES OF VIRGINIA, INC.

HEARTLAND REHABILITATION SERVICES, INC.

HEARTLAND SERVICES CORP.

HEARTLAND THERAPY PROVIDER NETWORK, INC.

HGCC OF ALLENTOWN, INC.

IN HOME HEALTH, INC.

INDUSTRIAL WASTES, INC.

IONIA MANOR, INC.

JACKSONVILLE HEALTHCARE CORPORATION

JEFFERSON ARDEN, LLC

KENWOOD ARDEN, LLC

KNOLLVIEW MANOR, INC.

LEADER NURSING AND REHABILITATION CENTER OF BETHEL PARK, INC.

LEADER NURSING AND REHABILITATION CENTER OF GLOUCESTER, INC.

LEADER NURSING AND REHABILITATION CENTER OF SCOTT TOWNSHIP, INC.

LEADER NURSING AND REHABILITATION CENTER OF VIRGINIA INC.

LINCOLN HEALTH CARE, INC.

LIVONIA ARDEN, LLC

MANOR CARE AVIATION, INC.

MANOR CARE OF AKRON, INC.

MANOR CARE OF AMERICA, INC

MANOR CARE OF ARIZONA, INC.

MANOR CARE OF ARLINGTON, INC.

MANOR CARE OF CANTON, INC.

MANOR CARE OF CHARLESTON, INC.

MANOR CARE OF CINCINNATI, INC.

MANOR CARE OF COLUMBIA, INC.




 









 





MANOR CARE OF DARIEN, INC.

MANOR CARE OF DELAWARE COUNTY, INC.

MANOR CARE OF FLORIDA, INC.

MANOR CARE OF HINSDALE, INC.

MANOR CARE OF KANSAS, INC.

MANOR CARE OF KINGSTON COURT, INC.

MANOR CARE OF LARGO, INC.

MANOR CARE OF LEXINGTON, INC.

MANOR CARE OF MEADOW PARK, INC.

MANOR CARE OF MIAMISBURG, INC

MANOR CARE OF NORTH OLMSTED, INC.

MANOR CARE OF PINEHURST, INC.

MANOR CARE OF ROLLING MEADOWS, INC.

MANOR CARE OF ROSSVILLE, INC.

MANOR CARE OF WILLOUGHBY, INC.

MANOR CARE OF WILMINGTON, INC.

MANOR CARE OF YORK (NORTH), INC.

MANOR CARE OF YORK (SOUTH), INC.

MANOR CARE SUPPLY COMPANY

MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY, INC.

MANORCARE HEALTH SERVICES OF OKLAHOMA, INC.

MANORCARE HEALTH SERVICES OF VIRGINIA, INC.

MANORCARE HEALTH SERVICES, INC.

MARINA VIEW MANOR, INC.

MEDI-SPEECH SERVICE, INC.

MEMPHIS ARDEN, LLC

MILESTONE HEALTH SYSTEMS, INC.

MILESTONE HEALTHCARE, INC.

MILESTONE REHABILITATION SERVICES, INC.

MILESTONE STAFFING SERVICES, INC.

MILESTONE THERAPY SERVICES, INC.

MNR FINANCE CORP.

NAPA ARDEN, LLC

PEAK REHABILITATION, INC.

PERRYSBURG PHYSICAL THERAPY, INC

PNEUMATIC CONCRETE, INC.

PORTFOLIO ONE, INC.

REHABILITATION ADMINISTRATION CORPORATION

REINBOLT & BURKAM, INC.

RICHARDS HEALTHCARE, INC.

RIDGEVIEW MANOR, INC.

ROANOKE ARDEN, LLC

ROLAND PARK NURSING CENTER, INC.

RVA MANAGEMENT SERVICES, INC.

SAN ANTONIO ARDEN, LLC

SILVER SPRING — WHEATON NURSING HOME, INC.




 









 





SILVER SPRING ARDEN, LLC

SPRINGHILL MANOR, INC.

STEWALL CORPORATION

STRATFORD MANOR, INC.

STUTEX CORP.

SUN VALLEY MANOR, INC.

SUSQUEHANNA ARDEN LLC

TAMPA ARDEN, LLC

THE NIGHTINGALE NURSING HOME, INC.

THERASPORT PHYSICAL THERAPY, INC.

THREE RIVERS MANOR, INC.

TOTALCARE CLINICAL LABORATORIES, INC.

TUSCAWILLA ARDEN, LLC

WALL ARDEN, LLC

WARMINSTER ARDEN LLC

WASHTENAW HILLS MANOR, INC.

WHITEHALL MANOR, INC.

WILLIAMSVILLE ARDEN, LLC