Exhibit
10.2


REGISTRATION
RIGHTS AGREEMENT
 

by and among



SPX Corporation

Engineering Analysis Associates, Inc.


Flair
Corporation


Kayex
China Holdings, Inc.


LDS Test
and Measurement LLC


The Marley
Company LLC


Marley
Engineered Products LLC


The
Marley-Wylain Company


MCT
Services LLC


P.S.D., Inc.


SPX
Cooling Technologies, Inc.


TCI
International, Inc.


Valley
Forge Technical Information Services, Inc.


Waukesha
Electric Systems, Inc.


XCel
Erectors, Inc.


 and



Banc of America Securities LLC

J.P. Morgan Securities Inc.

Citigroup Global Markets
Inc.


Scotia Capital (USA) Inc.


Commerzbank Capital Markets Corp.


Deutsche Bank Securities Inc.


Mitsubishi UFJ Securities
International plc



 Dated as of December 13, 2007


 

















 


REGISTRATION RIGHTS AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
December 13, 2007, by and among SPX Corporation, a Delaware corporation
(the “Company”), Engineering Analysis Associates, Inc., a Michigan
corporation, Flair Corporation, a Delaware corporation, Kayex China Holdings, Inc.,
a Delaware corporation, LDS Test and Measurement LLC, a Delaware limited
liability company, The Marley Company LLC, a Delaware limited liability
company, Marley Engineered Products LLC, a Delaware limited liability company, The
Marley-Wylain Company, a Delaware corporation, MCT Services LLC, a Delaware
limited liability company, P.S.D., Inc., an Ohio Corporation, SPX Cooling
Technologies, Inc., a Delaware corporation, TCI International, Inc.,
a Delaware corporation, Valley Forge Technical Information Services, Inc.,
a Michigan corporation, Waukesha Electric Systems, Inc., a Wisconsin
corporation and XCel Erectors, Inc., a Delaware corporation (collectively,
the “Guarantors”), and Banc of America Securities LLC and J.P. Morgan Securities
Inc., as representatives of the initial purchasers listed on Schedule A to the
Purchase Agreement (as defined below) (collectively, the “Initial Purchasers”),
each of whom has agreed to purchase the Company’s 7 5/8% Senior Notes due 2014
(the “Initial Notes”) fully and unconditionally guaranteed by the Guarantors
(the “Guarantees”) pursuant to the Purchase Agreement (as defined below). The
Initial Notes and the Guarantees attached thereto are herein collectively
referred to as the “Initial Securities.”


 


This Agreement
is made pursuant to the purchase agreement, dated December 10, 2007 (the “Purchase
Agreement”), among the Company, the Guarantors and the Initial Purchasers (i) for
the benefit of the Initial Purchasers and (ii) for the benefit of the
Holders from time to time of the Initial Securities, including the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Initial
Securities, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 5(h) of
the Purchase Agreement.


 


The parties
hereby agree as follows:


 


SECTION 1.           Definitions. As
used in this Agreement, the following capitalized terms shall have the
following meanings:


 


Additional
Interest:  As
defined in Section 5 hereto.


 


Broker-Dealer:  Any broker or dealer
registered under the Exchange Act.


 


Business Day: 
Any day other than a Saturday, Sunday or U.S. federal holiday or a day
on which banking institutions or trust companies located in New York, New York
are authorized or obligated to be closed.


 


Closing
Date:  The date
of this Agreement.


 


Commission:  The Securities and
Exchange Commission.


 


Consummate:  A registered
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the Securities


 

















 


Act of the Exchange Offer
Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period
not less than the minimum period required pursuant to Section 3(b) hereof,
and (iii) the delivery by the Company to the Registrar under the Indenture
of Exchange Securities in the same aggregate principal amount as the aggregate
principal amount of Initial Securities that were tendered by Holders thereof
pursuant to the Exchange Offer.


 


Effectiveness
Target Date:  As
defined in Section 3(a) hereof.


 


Exchange
Act:  The
Securities Exchange Act of 1934, as amended.


 


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


 


Exchange
Offer Registration Statement:  The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.


 


Exchange
Securities:  The
7 5/8% Senior Notes due 2014, of the same series under the Indenture as the
Initial Securities and the Guarantees attached thereto, to be issued to Holders
in exchange for Transfer Restricted Securities pursuant to this Agreement.


 


Filing
Target Date:  February 28,
2009.


 


FINRA:  The Financial
Industry Regulatory Authority.


 


Guarantees:  As defined in
preamble hereof.


 


Guarantors:  As defined in
preamble hereof.


 


Holders:  As defined in Section 2(b) hereof.


 


Indemnified
Holder:  As
defined in Section 8(a) hereof.


 


Indenture:  The Indenture, dated
as of December 13, 2007, by and among the Company, the Guarantors and U.S.
Bank, N.A., as trustee (the “Trustee”), pursuant to which the Securities are to
be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.


 


Initial
Purchasers:  As
defined in the preamble hereto.


 


Initial
Notes:  As
defined in the preamble hereto.


 


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Initial Placement:  The issuance and
sale by the Company of the Initial Securities to the Initial Purchasers
pursuant to the Purchase Agreement.


 


Initial
Securities:  As
defined in the preamble hereto.


 


Interest
Payment Date:  As
defined in the Indenture and the Securities.


 


Issuer Free
Writing Prospectus:  As
defined in Section 4(c) hereof.


 


Person:  An individual,
partnership, limited partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision
thereof.


 


Prospectus:  The prospectus
included in a Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.


 


Registration
Default:  As
defined in Section 5 hereof.


 


Registration
Statement:  Any
registration statement of the Company relating to (a) an offering of
Exchange Securities pursuant to an Exchange Offer or (b) the registration
for resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.


 


Securities:  The Initial
Securities and the Exchange Securities.


 


Securities
Act:  The
Securities Act of 1933, as amended.


 


Shelf
Filing Deadline:  As
defined in Section 4(a) hereof.


 


Shelf
Registration Statement:  As
defined in Section 4(a) hereof.


 


Trust
Indenture Act:  The
Trust Indenture Act of 1939, as amended.


 


Transfer
Restricted Securities:  Each
Initial Security, until the earliest to occur of (a) the date on which
such Initial Security is exchanged in the Exchange Offer for an Exchange
Security entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, (b) the
date on which such Initial Security has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Initial Security is distributed to
the public pursuant to Rule 144 under the Securities Act or by a
Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus contained
therein), and (d)(i) the date on which such Initial Security becomes
freely tradeable under the Securities Act and (ii) such Initial Security
may be exchanged, upon request of the Holder, for an Exchange Security without
restrictive legends.


 


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Underwritten
Registration or Underwritten Offering:  A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.


 


SECTION 2.           Securities Subject to this
Agreement.


 


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


 


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


 


SECTION 3.           Registered Exchange Offer.


 


(a)           Unless the Exchange Offer shall not
be permissible under applicable law or Commission policy (after the procedures
set forth in Section 6(a) hereof have been complied with), or there
are no Transfer Restricted Securities outstanding, each of the Company and the
Guarantors shall (i) cause to be filed with the Commission no later than
the Filing Target Date, a Registration Statement under the Securities Act
relating to the Exchange Securities and the Exchange Offer, (ii) use
commercially reasonable efforts to cause such Registration Statement to become
effective no later than 120 days after the Filing Target Date (or if such 120th
day is not a Business Day, the next succeeding Business Day) (such date, the “Effectiveness
Target Date”), (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Securities to be made under the state securities or blue sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer,
and (iv) upon the effectiveness of such Registration Statement, commence
the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange
for the Transfer Restricted Securities and to permit resales of Initial
Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.


 


(b)           The Company and the Guarantors shall
use their commercially reasonable efforts to cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be
less than 30 days after the date notice of the Exchange Offer is mailed to the
Holders. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange
Securities shall be included in the Exchange Offer Registration Statement. The
Company shall use commercially reasonable efforts to cause the Exchange Offer
to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30 days
after the Effectiveness Target Date (or if such 30th day is not a Business Day,
the next succeeding Business Day).


 


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(c)           The Company shall indicate in a “Plan
of Distribution” section contained in the Prospectus forming a part of the
Exchange Offer Registration Statement that any Broker-Dealer who holds Initial
Securities that are Transfer Restricted Securities and that were acquired for
its own account as a result of market-making activities or other trading
activities (other than Transfer Restricted Securities acquired directly from
the Company), may exchange such Initial Securities pursuant to the Exchange
Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within
the meaning of the Securities Act and must, therefore, deliver a prospectus
meeting the requirements of the Securities Act in connection with any resales
of the Exchange Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery
by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such “Plan of Distribution” section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such “Plan of Distribution” shall not name any such Broker-Dealer or disclose
the amount of Initial Securities held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.


 


Each of the
Company and the Guarantors shall use commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) hereof to
the extent necessary to ensure that it is available for resales of Initial
Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 180 days from the date on which the Exchange
Offer Registration Statement is declared effective and (ii) the date on
which a Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.


 


The Company
shall provide sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day (or shorter as provided in
the foregoing sentence) period in order to facilitate such resales.


 


Notwithstanding
anything herein to the contrary, no Exchange Offer or Shelf Registration
Statement will be required if all of the Initial Securities are no longer
Transfer Restricted Securities prior to the Effectiveness Target Date. In
addition, notwithstanding anything herein to the contrary, the Company will
have no further obligation under this Agreement upon the Consummation of the
Exchange Offer to any Holder of Transfer Restricted Securities who was eligible
to participate in the Exchange Offer and did not participate in the Exchange Offer.


 


SECTION 4.           Shelf Registration.


 


(a)           Shelf Registration. If
(i) the Company is not required to file an Exchange Offer Registration
Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set
forth in Section 6(a) hereof have been complied with), (ii) for
any reason the Exchange Offer is not Consummated within 150 days after the
Filing Target Date (or if such 150th day is not a Business Day, the next
succeeding Business Day) unless the Notes are all freely tradeable prior to
such time, or (iii) 


 


5

















 


prior to the 20th day following
the consummation of the Exchange Offer (A) the Initial Purchasers request
from the Company with respect to Transfer Restricted Securities not eligible to
be exchanged for Exchange Securities in the Exchange Offer, (B) with
respect to any Holder of Transfer Restricted Securities such Holder notifies
the Company that (i) such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (ii) such
Holder may not resell the Exchange Securities acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (iii) such Holder is a Broker-Dealer
and holds Initial Securities acquired directly from the Company or one of its affiliates
or (C) in the case of any Initial Purchaser, such Initial Purchaser
notifies the Company it will not receive freely tradable Exchange Securities in
exchange for Transfer Restricted Securities constituting any position of such
Initial Purchaser’s unsold allotment, the Company and the Guarantors shall


 


(x)            cause to be filed a shelf
registration statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to 30 days after
such obligation arises but no earlier than the Filing Target Date (or if such
30th day is not a Business Day, the next succeeding Business Day) (such date
being the “Shelf Filing Deadline”), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b) hereof;
and


 


(y)           use commercially reasonable efforts
to cause such Shelf Registration Statement to be declared effective by the
Commission on or before the 30th day after the Shelf Filing Deadline (or if
such 30th day is not a Business Day, the next succeeding Business Day).


 


Each of the
Company and the Guarantors shall use commercially reasonable efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof
to the extent necessary to ensure that it is available for resales of Initial
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
at least two years following the effective date of such Shelf Registration
Statement (or shorter period that will terminate when all the Initial Securities
covered by such Shelf Registration Statement have been sold pursuant to such
Shelf Registration Statement or are otherwise transferable pursuant to Rule 144(k) (as
amended or restated) under the Securities Act); provided that the Company may
for a period of up to 60 days in any three-month period, not to exceed 90 days
in any calendar year determine that the Shelf Registration Statement is not
usable under certain circumstances relating to corporate developments, public filings
with the SEC and similar events, and suspend the use of the prospectus that is
part of the Shelf Registration Statement.


 


(b)           Provision by Holders of
Certain Information in Connection with the Shelf Registration Statement. No
Holder of Transfer Restricted Securities may include any of its Transfer 


 


6

















 


Restricted Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after
receipt of a request therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly
to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.


 


(c)           Issuer Free Writing
Prospectuses. Each Holder represents and agrees that, unless it
obtains the prior consent of the Company, it will not make any offer relating
to the Securities that would constitute an “issuer free writing prospectus,” as
defined in Rule 433 (an “Issuer Free Writing Prospectus”), or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. The Company represents that any
Issuer Free Writing Prospectus, when taken together with the information in the
Shelf Registration Statement and the Prospectus, will not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.


 


SECTION 5.           Additional Interest. If
(i) within 150 days after the Filing Target Date, neither the Shelf
Registration Statement has been declared effective by the Commission, nor has
an Exchange Offer been Consummated with respect to the Exchange Offer
Registration Statement, if so required hereunder or (ii) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter, at a time the Registration Statement is required to remain effective,
cease to be effective or fail to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (i) through (ii), a “Registration
Default”), the Company hereby agrees that the interest rate borne by the
Transfer Restricted Securities shall be increased by 0.5% per annum (“Additional
Interest”). Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the interest rate borne by the
relevant Transfer Restricted Securities will be reduced to the original
interest rate borne by such Transfer Restricted Securities; provided, however, that, if after any such
reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again
be increased pursuant to the foregoing provisions.


 


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


 


SECTION 6.           Registration Procedures.


 


(a)           Exchange Offer
Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall comply with all of the provisions of Section 6(c) hereof,
shall use commercially reasonable efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply with all
of the following provisions:


 


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(i)      If
in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company
and the Guarantors hereby agrees to seek a no-action letter or other favorable
decision from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Initial Securities. Each of the Company
and the Guarantors hereby agrees to pursue the issuance of such a decision to
the Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. Each of the
Company and the Guarantors hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a favorable resolution
by the Commission staff of such submission.


 


(ii)     As
a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer and (C) it is acquiring the
Exchange Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company’s preparations for the Exchange Offer. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission’s letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Securities obtained
by such Holder in exchange for Initial Securities acquired by such Holder
directly from the Company.


 


(b)           Shelf Registration
Statement. In connection with the Shelf Registration Statement, each
of the Company and the Guarantors shall comply with all the provisions of Section 6(c) hereof
and shall use its commercially reasonable efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto each of the Company and the Guarantors will prepare and file
with the Commission a Registration Statement relating to the registration on
any appropriate form under the Securities Act, which form shall be available
for the sale of the 


 


8

















 


Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof in
accordance with the time periods set forth in Section 4.


 


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


 


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


 


(ii)     prepare
and file with the Commission such amendments and post-effective amendments to
the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3
or 4 hereof, as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold or are otherwise transferable pursuant to Rule 144(k) (as
amended or restated) under the Securities Act; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;


 


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


 


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Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or blue sky laws, each of the Company and the Guarantors shall use
commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;


 


(iv)    furnish
without charge to each of the Initial Purchasers, each selling Holder named in
any Registration Statement, and each of the underwriter(s), if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least three Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which an Initial Purchaser of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within three Business Days after the receipt
thereof (such objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial Purchaser or underwriter,
if any, shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;


 


(v)     make
available at reasonable times for inspection, upon written request, at the
offices where normally kept, by a representative of the Initial Purchasers, the
managing underwriter(s), if any, participating in any disposition pursuant to
such Registration Statement and any attorney or one firm of accountants
retained by such Initial Purchasers or any of the managing underwriter(s), all
financial and other records, pertinent corporate documents and properties of
each of the Company and the Guarantors and cause the Company’s and the
Guarantors’ officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness and to
participate in meetings with investors to the extent reasonably requested by
the managing underwriter(s), if any; provided, that
if any such information is reasonably identified by the Company or any
Guarantor as being confidential or proprietary, each Person receiving such
information shall take such actions as are reasonably necessary to protect the
confidentiality of 


 


10

















 


such information,
and shall sign confidentiality agreements requested by the Company or any Guarantor
prior to the receipt of such information;


 


(vi)    if
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities, information with respect
to the principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters
to be incorporated in such Prospectus supplement or post-effective amendment;


 


(vii)   cause
the Transfer Restricted Securities covered by the Registration Statement to be
rated with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Securities covered thereby or the underwriter(s),
if any;


 


(viii)  furnish
to each Initial Purchaser, each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);


 


(ix)    deliver
to each selling Holder and each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may request;
each of the Company and the Guarantors hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;


 


(x)     enter
into such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by
this Agreement, all to such extent as may be requested by any Initial Purchaser
or by any Holder of Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to any Registration Statement contemplated by
this Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration, each of
the Company and the Guarantors shall:


 


(A)        furnish
to each Initial Purchaser, each selling Holder and each underwriter, if any, in
such substance and scope as they may request and as are 


 


11

















 


customarily
made by issuers to underwriters in primary underwritten offerings, upon the
effectiveness of the Shelf Registration Statement:


 


(1)           a
certificate, dated the date of effectiveness of the Shelf Registration
Statement, signed by (y) the President or any Vice President and (z) a
principal financial or accounting officer of each of the Company and the
Guarantors, confirming, as of the date thereof, the matters set forth in
paragraphs (i), (ii) and (iii) of Section 5(e) of the
Purchase Agreement and such other matters as such parties may reasonably
request;


 


(2)           use
reasonable best efforts to obtain an opinion, dated the date of effectiveness
of the Shelf Registration Statement, of counsel for the Company and the
Guarantors, covering the matters set forth in Section 5(c) of the
Purchase Agreement and such other matter as such parties may reasonably
request, and in any event including a statement to the effect that such counsel
has participated in conferences with officers and other representatives of the
Company and the Guarantors, representatives of the independent public
accountants for the Company and the Guarantors, representatives of the
underwriter(s), if any, and counsel to the underwriter(s), if any, in
connection with the preparation of such Registration Statement and the related
Prospectus and have considered the matters required to be stated therein and
the statements contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements; and that
such counsel advises that, on the basis of the foregoing, no facts came to such
counsel’s attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and other financial data included
in any Registration Statement contemplated by this Agreement or the related Prospectus;
and


 


(3)           use
reasonable best efforts to obtain a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from the Company’s
independent accountants, in the customary form and covering matters of the type
customarily requested to be covered in comfort letters by underwriters in
connection with primary underwritten offerings, and covering or affirming the
matters set forth in the comfort letters delivered pursuant to Section 5(a) of
the Purchase Agreement, without exception;


 


12

















 


(B)           set
forth in full or incorporate by reference in the underwriting agreement, if
any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and


 


(C)           deliver
such other documents and certificates as may be reasonably requested by such parties
to evidence compliance with Section 6(c)(xi)(A) hereof and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company or any of the Guarantors pursuant to this Section 6(c)(xi),
if any.


 


If at any time
the representations and warranties of the Company and the Guarantors
contemplated in Section 6(c)(xi)(A)(1) hereof cease to be true and
correct, the Company or the Guarantors shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;


 


(xi)    prior
to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted Securities
under the state securities or blue sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may reasonably request and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered
by the Shelf Registration Statement; provided, however,
that none of the Company nor the Guarantors shall be required to register or
qualify as a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not then so subject;


 


(xii)   shall
issue, upon the request of any Holder of Initial Securities covered by the
Shelf Registration Statement, Exchange Securities having an aggregate principal
amount equal to the aggregate principal amount of Initial Securities
surrendered to the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Securities to be registered in the name of such
Holder or in the name of the purchaser(s) of such Securities, as the case
may be; in return, the Initial Securities held by such Holder shall be
surrendered to the Company for cancellation;


 


(xiii)  cooperate
with the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations (subject to the
applicable requirements contained in the applicable Indenture) and registered
in such names as the Holders or the underwriter(s), if any, may request at
least two Business Days prior to any sale of Transfer Restricted Securities
made by such Holders or underwriter(s);


 


(xiv)  use
commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by such



 


13

















 


other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in Section 6(c)(xii) hereof, except as may be
required solely as a consequence of the nature of such selling Holder’s
business, in which case the Company and the Guarantors will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals;


 


(xv)   if
any fact or event contemplated by Section 6(c)(iii)(D) hereof shall
exist or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein in light of the
circumstances under which they were made, not misleading;


 


(xvi)  provide
a CUSIP number for all Securities not later than the effective date of the
Registration Statement covering such Securities and provide the Trustee under
the Indenture with printed certificates for such Securities which are in a form
eligible for deposit with the Depository Trust Company and take all other
action necessary to ensure that all such Securities are eligible for deposit
with the Depository Trust Company;


 


(xvii) cooperate
and assist in any filings required to be made with FINRA and in the performance
of any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with
the rules and regulations of FINRA;


 


(xviii) otherwise use commercially
reasonable efforts to comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are sold
to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if
not sold to underwriters in such an offering, beginning with the first month of
the Company’s first fiscal quarter commencing after the effective date of the
Registration Statement;


 


(xix)   cause
the Indenture to be qualified under the Trust Indenture Act not later than the
effective date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and the Holders of Securities
to effect such changes to the Indenture as may be required for such Indenture
to be so qualified in accordance with the terms of the Trust Indenture Act; and
to execute and use commercially reasonable efforts to cause the Trustee to
execute, all documents that 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;


 


(xx)    cause
all Securities covered by the Registration Statement to be listed on each
securities exchange or automated quotation system on which similar securities 


 


14

















 


issued by the Company are then listed if requested by the Holders of a
majority in aggregate principal amount of Initial Securities or the managing
underwriter(s), if any; and


 


(xxi)   provide
promptly to each Holder upon request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.


 


Each Holder
agrees by acquisition of a Transfer Restricted Security that, upon receipt of
any notice from the Company of the existence of any fact of the kind described
in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder’s receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the “Advice”) by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will 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 Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice; provided, however,
that no such extension shall be taken into account in determining whether
Additional Interest is due pursuant to Section 5 hereof or the amount of
such Additional Interest, it being agreed that the Company’s option to suspend
use of a Registration Statement pursuant to this paragraph shall be treated as
a Registration Default for purposes of Section 5 hereof.


 


SECTION 7.           Registration Expenses.


 


(a)           All expenses incident to the Company’s
and the Guarantor’s performance of or compliance with this Agreement will be
borne by the Company and the Guarantors, jointly and severally, regardless of
whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with FINRA (and, if applicable,
the fees and expenses of any “qualified independent underwriter” and its
counsel that may be required by the rules and regulations of FINRA)); (ii) all
fees and expenses of compliance with federal securities and state securities or
blue sky laws; (iii) all expenses of printing (including printing
certificates for the Exchange Securities to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Company, the Guarantors and, subject
to Section 7(b) hereof, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing
the Exchange Securities on a securities exchange or automated quotation system
pursuant to the requirements thereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company and the Guarantors 


 


15

















 


(including the expenses of any
special audit and comfort letters required by or incident to such performance).


 


Each of the
Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company or the Guarantors.


 


(b)           In connection with any Registration
Statement required by this Agreement (including, without limitation, the
Exchange Offer Registration Statement and the Shelf Registration Statement),
the Company and the Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or registered pursuant
to the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Cahill Gordon &
Reindel LLP or such other counsel as may be chosen by the Holders of a majority
in principal amount of the Transfer Restricted Securities for whose benefit
such Registration Statement is being prepared.


 


SECTION 8.           Indemnification.


 


(a)           The Company and the Guarantors,
jointly and severally, agree to indemnify and hold harmless (i) each
Holder and (ii) each Person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) any Holder (any
of the Persons referred to in this clause (ii) being hereinafter referred
to as a “controlling person”) and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an “Indemnified Holder”), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced
or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) or Prospectus (or any
amendment or supplement thereto), or any preliminary prospectus or any Issuer
Free Writing Prospectus (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of
the Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company or any of the Guarantors may otherwise
have.


 


In case any
action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders
with respect 


 


16

















 


to which indemnity may be
sought against the Company or the Guarantors, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify
the Company and the Guarantors in writing; provided, however,
that the failure to give such notice shall not relieve any of the Company or
the Guarantors of their obligations pursuant to this Agreement. Such
Indemnified Holder shall have the right to employ its own counsel in any such
action and the fees and expenses of such counsel shall be paid, as incurred, by
the Company and the Guarantors (regardless of whether it is ultimately
determined that an Indemnified Holder is not entitled to indemnification
hereunder). The Company and the Guarantors shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Holders, which firm shall be designated by the
Holders. The Company and the Guarantors shall be liable for any settlement of
any such action or proceeding effected with the Company’s and the Guarantors’
prior written consent, which consent shall not be withheld unreasonably, and
each of the Company and the Guarantors agrees to indemnify and hold harmless
any Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Company and the Guarantors. The Company and the Guarantors shall
not, without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.


 


(b)           Each Holder of Transfer Restricted
Securities agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Guarantors and their respective directors, officers of the
Company and the Guarantors who sign a Registration Statement, and any Person controlling
(within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) the Company or any of the Guarantors, and the respective
officers, directors, partners, employees, representatives and agents of each
such Person, to the same extent as the foregoing indemnity from the Company and
the Guarantors to each of the Indemnified Holders, but only with respect to
claims and actions based on information relating to such Holder furnished in
writing by such Holder expressly for use in any Registration Statement. In case
any action or proceeding shall be brought against the Company, the Guarantors
or their respective directors or officers or any such controlling person in
respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company and the Guarantors, and the Company, the Guarantors, their respective
directors and officers and such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph.


 


(c)           If the indemnification provided for
in this Section 8 is unavailable to an indemnified party under Section 8(a) or
(b) hereof (other than by reason of exceptions provided in those Sections)
in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result 


 


17

















 


of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantors, on the one
hand, and the Holders, on the other hand, from the Initial Placement (which in
the case of the Company and the Guarantors shall be deemed to be equal to the
total gross proceeds to the Company and the Guarantors from the Initial
Placement), the amount of Additional Interest which did not become payable as a
result of the filing of the Registration Statement resulting in such losses,
claims, damages, liabilities, judgments actions or expenses, and such
Registration Statement, or if such allocation is not permitted by applicable
law, the relative fault of the Company and the Guarantors, on the one hand, and
the Holders, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnified Holder on the other 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 Company or any of
the Guarantors, on the one hand, or the Indemnified Holders, on the other hand,
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations
set forth in the second paragraph of Section 8(a) hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.


 


The Company,
the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, none of
the Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total
discount received by such Holder with respect to the Initial Securities exceeds
the amount of any damages which such Holder has otherwise been required to pay
by reason of such 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 8(c) are
several in proportion to the respective principal amount of Initial Securities
held by each of the Holders hereunder and not joint.


 


SECTION 9.           Rule 144A. Each
of the Company and the Guarantors hereby agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities 


 


18

















 


Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A under the
Securities Act.


 


SECTION 10.         Participation in
Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell
such Holder’s Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.


 


SECTION 11.         Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker(s) and managing underwriter(s) that will administer
such offering will be selected by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities included in such
offering; provided, however, that such investment
banker(s) and managing underwriter(s) must be reasonably satisfactory
to the Company.


 


SECTION 12.         Miscellaneous.


 


(a)           Remedies. Each
of the Company and the Guarantors hereby agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.


 


(b)           No Inconsistent Agreements.
Each of the Company and the Guarantors will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Neither the Company nor any of
the Guarantors has previously entered into any agreement granting any
registration rights with respect to its debt securities to any Person. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company’s or any
of the Guarantors’ securities under any agreement in effect on the date hereof.


 


(c)           Actions Affecting the
Securities. The Company will not take any action, or permit any
change to occur, with respect to the Securities that would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer.


 


(d)           Amendments and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given unless the Company has (i) in the case of Section 5 hereof and
this Section 12(d)(i), obtained the written consent of Holders of all
outstanding Transfer Restricted Securities and (ii) in the case of all
other provisions hereof, obtained the written consent of Holders of a majority
of the outstanding principal amount of Transfer Restricted Securities (excluding
any Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange 


 


19

















 


Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not
being tendered pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
being tendered or registered; provided, however,
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written
consent of each such Initial Purchaser with respect to which such amendment,
qualification, supplement, waiver, consent or departure is to be effective.


 


(e)           Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight
delivery:


 


(i)      if
to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and


 


(ii)                                                               if
to the Company:


 


SPX Corporation


13515 Ballantyne Corporate Place


Charlotte, NC 28277


Telecopier No.: (704)752-4505


Attention: Kevin L. Lilly, Esq.


 


With a copy to:


 


Fried, Frank, Harris, Shriver & Jacobson LLP


One New York Plaza


New York, NY 10004


Telecopier No.: (212)859-4000 


Attention: Stuart H. Gelfond, Esq.


 


All such
notices and communications shall be deemed to have been duly given:  at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; 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 specified in the
Indenture.


 


(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, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities;
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 acquired Transfer
Restricted Securities from such Holder.


 


20

















 


(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.


 


(i)            Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.


 


(j)            Severability. In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.


 


(k)           Entire Agreement. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by
the Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


21

















 


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


 


	
   

  	
  SPX
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Senior Vice President &Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENGINEERING
  ANALYSIS ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FLAIR
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KAYEX CHINA
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  



 


22

















 


	
   

  	
  LDS TEST AND
  MEASUREMENT LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE MARLEY
  COMPANY LLC

  
	
   

  	
   

  
	
   

  	
  By: SPX
  Corporation, as Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Senior Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARLEY
  ENGINEERED PRODUCTS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Executive
  Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  MARLEY-WYLAIN COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Coolican

  
	
   

  	
   

  	
  Name: Mark
  Coolican

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MCT SERVICES
  LLC

  
	
   

  	
  By: SPX
  Cooling Technologies, Inc.

  
	
   

  	
   

  	
  as Sole
  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Executive
  Vice President & Secretary

  
				



 


23

















 


	
   

  	
  P.S.D., INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPX COOLING
  TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TCI
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALLEY FORGE
  TECHNICAL INFORMATION SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title:
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WAUKESHA
  ELECTRIC SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L.
  Lilly

  
	
   

  	
   

  	
  Name: Kevin
  L. Lilly

  
	
   

  	
   

  	
  Title: Vice
  President & Secretary

  



 


24

















 


	
   

  	
  XCEL
  ERECTORS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  B. Foreman

  
	
   

  	
   

  	
  Name: Robert
  B. Foreman

  
	
   

  	
   

  	
  Title:
  President

  



 


The foregoing
Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:


 


 


	
   

  	
  BANC OF AMERICA SECURITIES LLC

  J.P. MORGAN SECURITIES INC.,

  as
  Representatives of the Initial Purchasers

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Banc of
  America Securities LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  Browne

  
	
   

  	
   

  	
  Name: Michael
  Browne

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  J.P. Morgan Securities Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stathis
  Karanikolaidis

  
	
   

  	
   

  	
  Name: Stathis
  Karanikolaidis

  
	
   

  	
   

  	
  Vice
  President

  



 


 


25