Exhibit 4.5


 


$50,000,000


 


AVENTINE RENEWABLE ENERGY HOLDINGS, INC.


 


13% SENIOR SECURED NOTES DUE 2015


 


REGISTRATION RIGHTS AGREEMENT


 


August 19, 2010


 


Ladies
and Gentlemen:


 


Aventine
Renewable Energy Holdings, Inc., a Delaware corporation (the “Company”), is issuing and selling to
the Holders (as defined below) listed on Annex I, upon the terms set
forth in the Company’s August 2010 Confidential Information Memorandum,
the Second Backstop Commitment Agreement dated August 2, 2010, by and
among the Company, its subsidiaries and the parties listed on Annex II
(each a “Backstop  Purchaser”
and collectively, the “Backstop Purchasers”)
(the “Second Backstop
Commitment Agreement”), and the Subscription Agreements between
the initial Holders of the Notes, on the one hand, and the Company, on the
other (the “Subscription
Agreements”), $50,000,000 aggregate principal amount of 13%
Senior Secured Notes due 2015 (each, together with the related guarantees, a “Note” and collectively, the “Notes”).  As an inducement to the Backstop Purchasers
to enter into the Second Backstop Commitment Agreement, and as an inducement to
the Holders to enter into the Subscription Agreements, the Company and the
Guarantors (as defined below) agree with the Backstop Purchasers, for the benefit
of the Holders of the Notes, as follows:


 


1.                                       Definitions


 


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


 


Additional Interest: See Section 4(a).


 


Advice:  See Section 5.


 


affiliate:  See Rule 405 and including, with respect
to the Backstop Purchasers, managed funds and accounts.


 


Agreement:  This Registration Rights Agreement, dated as
of the Closing Date, among the Company, the Guarantors party hereto and the
Backstop Purchasers.


 


Applicable Period:  See Section 2(e).


 


Backstop Purchasers:  See the introductory paragraph to this
Agreement.


 


Blackout Period:  See Section 3(e).


 


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Business Day:  A day that is not a Saturday, a Sunday or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to be closed.


 


Closing Date:  August 19,
2010


 


Company:  See the introductory paragraph to this
Agreement, and includes any successor thereto.


 


Effectiveness Date:  The 365th day after the
Issue Date.


 


Event Date:  See Section 4(b).


 


Exchange Act:  The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.


 


Exchange Notes:  Senior Secured Notes due 2015 of the Company
registered under the Securities Act, identical in all material respects to, and
issued in exchange for, the Notes, including the guarantees thereof as set
forth in the Indenture, except for restrictive legends and additional interest
provisions, and including any PIK Notes (as defined in the Indenture (as
defined below)) issued on any Interest Payment Date (as defined in the
Indenture) pursuant to the fourth paragraph of Section 2.02 of the
Indenture in partial payment of the interest accrued on any Exchange Notes that
is due and payable on such Interest Payment Date.


 


Exchange Offer:  See Section 2(a).


 


Exchange Offer Registration Statement:  See Section 2(a).


 


Existing Notes:  $105 million in aggregate principal amount of
the Company’s 13% Senior Secured Notes due 2015 issued on March 15, 2010,
and including any PIK Notes issued on any Interest Payment Date pursuant to the
fourth paragraph of Section 2.02 of the Indenture in partial payment of
the interest accrued on any Existing Notes that is due and payable on such
Interest Payment Date.


 


Existing Registration Rights Agreement:  See Section 4(a)(iv).


 


Filing Date:  The 180th day after the
Issue Date.


 


FINRA:  Financial Industry Regulatory Authority.


 


Free Writing Prospectus:  A free writing prospectus, as defined in Rule 405.


 


Guarantors:  Each subsidiary of the Company that
guarantees the obligations of the Company under the Notes and the Indenture.


 


Holder:  Any registered holder of Registrable Notes
from time to time.


 


Indemnified Party:  See Section 7(c).


 


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Indemnifying Party:  See Section 7(c).


 


Indenture:  The Indenture, dated as of March 15,
2010, among the Company, the Guarantors and Wilmington Trust FSB, as trustee
and collateral agent, pursuant to which the Notes are being issued, as amended
or supplemented from time to time in accordance with the terms thereof.


 


Initial Shelf Registration Statement:  See Section 3(a).


 


Inspectors:  See Section 5(o).


 


Issue Date:  August 19, 2010.


 


Issuer Free Writing Prospectus:  An issuer free writing prospectus, as defined
in Rule 433.


 


Losses:  See Section 7(a).


 


Maximum Contribution Amount:  See Section 7(d).


 


Notes:  See the introductory paragraph to this
Agreement, and including any PIK Notes issued on any Interest Payment Date
pursuant to the fourth paragraph of Section 2.02 of the Indenture in
partial payment of the interest accrued on any Notes that is due and payable on
such Interest Payment Date.


 


Notice and Questionnaire:  See Section 3(d).


 


Participating Broker-Dealer:  See Section 2(e).


 


Permitted Free Writing Prospectus: See the last
paragraph of Section 5.


 


Person:  An individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm, government or
agency or political subdivision thereof, or other legal entity.


 


Prospectus:  The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all other amendments and supplements to the prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such prospectus.


 


Records:  See Section 5(o).


 


Registrable Notes:  Notes and Exchange Notes received in the
Exchange Offer; provided, that the Notes and the Exchange Notes received
in the Exchange Offer shall cease to be Registrable Notes when such Note or
Exchange Note, as the case may be, (i) may be sold 


 


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without
restriction under federal or state securities laws, (ii) may be sold
pursuant to Rule 144 (free of volume and all other restrictions
thereunder), (iii) has been sold pursuant to a Registration Statement, or (iv) ceases
to be outstanding.


 


Registration Statement:  Any registration statement of the Company and
the Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Offer Registration Statement, the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement) that
covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.


 


Rule 13d-3:  Rule 13d-3 promulgated under the
Exchange Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Rule 144:  Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule (other than Rule 144A) or regulation
hereafter adopted by the SEC providing for offers and sales of securities made
in compliance therewith resulting in offers and sales by subsequent holders
that are not affiliates of an issuer or such securities being free of the registration
and prospectus delivery requirements of the Securities Act.


 


Rule 144A:  Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule (other than Rule 144) or regulation
hereafter adopted by the SEC.


 


Rule 158:  Rule 158 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Rule 405:  Rule 405
promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar or successor rule or regulation
hereafter adopted by the SEC.


 


Rule 415:  Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Rule 424:  Rule 424 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Rule 430A:  Rule 430A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Rule 433:  Rule 433 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.


 


Second Backstop Commitment Agreement:  See
the introductory paragraph to this Agreement.


 


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SEC:  The Securities and Exchange Commission.


 


Securities:  The Notes and the Exchange Notes.


 


Securities  Act:  The
Securities Act of 1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.


 


Shelf  Notice:  See Section 2(h).


 


Shelf  Registration
Statement:  See Section 3(b).


 


Subscription Agreements:  See
the introductory paragraph to this Agreement.


 


Subsequent  Shelf Registration Statement:  See Section 3(b).


 


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


 


Trustee:  The trustee under the Indenture and, if
existent, the trustee under any indenture governing the Exchange Notes.


 


2.                                       Exchange Offer


 


(a)                                  Unless the Exchange Offer (as defined below)
would not be permitted by applicable laws or a policy or interpretation of the
staff of the SEC, the Company shall (and shall cause each Guarantor to) (i) prepare
and file with the SEC promptly after the date hereof, but in no event later
than the Filing Date, a registration statement (the “Exchange Offer Registration
Statement”) on an appropriate registration form under the
Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Notes
for Exchange Notes, (ii) use its commercially reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective as promptly
as practicable after the filing thereof, but in no event later than the
Effectiveness Date, (iii) use its commercially reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the consummation
of the Exchange Offer in accordance with its terms, and (iv) commence the
Exchange Offer and use its commercially reasonable best efforts to issue on or
prior to 50 days after the effective date of the Exchange Offer Registration
Statement, Exchange Notes in exchange for all Notes validly tendered and not
withdrawn prior thereto in the Exchange Offer. 
The Exchange Offer shall not be subject to any conditions, other than
customary conditions and that the Exchange Offer does not violate applicable law
or any applicable interpretation of the staff of the SEC.


 


(b)                                 The Exchange Notes shall be issued under, and
entitled to the benefits of, the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as are necessary to comply
with any requirements of the SEC to effect or maintain the qualifications
thereof under the TIA) which in either case will provide that (i) the
Exchange Notes will not be subject to the transfer restrictions or additional
interest provisions set forth in the Indenture and (ii) the Exchange 


 


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Notes and the Notes, if any, will be deemed one
class of security (subject to the provisions of the Indenture) and entitled to
participate in all the security granted by the Company pursuant to the Collateral
Documents and in any Guarantee (as such terms are defined in the Indenture) on
an equal and ratable basis.


 


(c)                                  Interest on the Exchange Notes will accrue
from (i) the later of (x) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (y) if
the Note is surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or after the date of such
exchange and as to which interest will be paid, the date of such interest
payment date or (ii) if no interest has been paid on the Notes, from the
Issue Date.  Each Exchange Note shall
bear interest at the rate set forth thereon; provided, that interest
with respect to the period prior to the issuance thereof shall accrue at the
rate or rates borne by the Notes from time to time during such period.


 


(d)                                 The Company may require each Holder as a
condition to participation in the Exchange Offer to represent to the Company
that at the time of the consummation of the Exchange Offer, (i) any
Exchange Notes received by such Holder will be acquired in the ordinary course
of its business, (ii) at the time of commencement of the Exchange Offer
such Holder has no arrangement or understanding with any Person to participate
in the distribution (within the meaning of the Securities Act) of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) such
Holder is not an affiliate of the Company or if such Holder is an affiliate
such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not intend
to engage in, the distribution of the Exchange Notes and (v) if such
Holder is a Participating Broker-Dealer (as defined below) that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as
a result of market-making or other trading activities, that it will deliver a
Prospectus in connection with any resale of the Exchange Notes.


 


(e)                                  The Company shall (and shall cause each
Guarantor to) include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution” which shall
contain all of the information that the SEC requires with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3) of Exchange Notes received by such
broker-dealer in the Exchange Offer for its own account in exchange for Notes
that were acquired by it as a result of market-making activities or other
trading activities (a “Participating
Broker-Dealer”).  Such “Plan
of Distribution” section shall also allow, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including, to the extent so permitted, all Participating Broker-Dealers,
and include a statement describing the manner in which Participating
Broker-Dealers may resell the Exchange Notes. 
The Company shall use its commercially reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to 


 


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amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the Securities Act
for such period of time as such Persons must comply with such requirements in
order to resell the Exchange Notes (the “Applicable Period”).


 


(f)                                    In connection with the Exchange Offer, the
Company shall (and shall cause each Guarantor to):


 


(i)                                     mail to each Holder a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal (substantially in the form attached as an exhibit to the Exchange
Offer Registration Statement) and any related documents;


 


(ii)                                  keep the Exchange Offer open for not less than 20 Business Days (or
longer if required by applicable law) after the date notice thereof is mailed
to the Holders;


 


(iii)                               utilize the services of a depository for the Exchange Offer with an address
in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;


 


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


 


(v)                                 otherwise comply with all applicable laws.


 


(g)                                 As soon as practicable after the close of the
Exchange Offer, the Company shall (and shall cause each Guarantor to):


 


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


 


(ii)                                  deliver to the Trustee for cancellation all Notes so accepted for
exchange; and


 


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


 


(h)                                 If, (i) because of any change in law or
in applicable interpretations thereof by the staff of the SEC the Company is
not permitted to effect an Exchange Offer, (ii) for any other reason the
Exchange Offer Registration Statement is not declared effective on or prior to
the Effectiveness Date, or the Exchange Offer is not consummated within 50 days
after the effective date of the Exchange Offer Registration Statement, (iii) any
Backstop Purchaser so requests with respect to 


 


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the Notes not eligible to be exchanged for Exchange
Notes in the Exchange Offer and held by it or any affiliate thereof following
consummation of the Exchange Offer, or (iv) in the case of (A) any
Holder not permitted to participate in the Exchange Offer, (B) any
Backstop Purchaser or any affiliate thereof participating in the Exchange Offer
that receives Registrable Notes or does not receive Exchange Notes on the date
of the exchange that may be sold without restriction under state and federal
securities laws or (C) any Participating Broker-Dealer holds Notes
acquired directly from the Company or one of its affiliates, and such Holder or
Participating Broker-Dealer notifies the Company of the same within six months
of the Exchange Offer, then in each case the Company shall promptly deliver to
the Holders and the Trustee written notice thereof (the “Shelf Notice”) and
shall as promptly as practicable and at its sole expense file an Initial Shelf
Registration Statement pursuant to Section 3.


 


3.                                       Shelf Registration


 


If
a Shelf Notice is delivered pursuant to Section 2(h), then this Section 3
shall apply to all Registrable Notes. 
Otherwise, upon consummation of the Exchange Offer in accordance with Section 2,
the provisions of this Section 3 shall apply solely with respect to
(i) Notes held by any Holder thereof not permitted to participate in the
Exchange Offer and (ii) Exchange Notes that are not freely transferable as
contemplated by Section 2(h)(iv) hereof, provided in
each case that the relevant Holder has duly notified the Company within six
months of the Exchange Offer as required by Section 2(h)(iv).


 


(a)                                  Initial Shelf Registration.   The
Company shall (and shall cause each Guarantor to), use its commercially
reasonable best efforts to, as promptly as practicable, file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes (the “Initial Shelf Registration Statement”)
within 30 days (or 60 days, in the event a Shelf Notice is delivered pursuant
to Section 2(h)(i)) after the delivery of the Shelf Notice and
shall (and shall cause each Guarantor to) use its commercially reasonable best
efforts to cause such Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as practicable thereafter (but
in no event more than 90 days (or 180 days, in the event a Shelf Notice is
delivered pursuant to Section 2(h)(i)) after delivery of the Shelf
Notice); provided, however, that if the Company (and each
Guarantor) has not yet filed an Exchange Offer Registration Statement, the
Company shall use its commercially reasonable best efforts to file (and shall
cause each Guarantor to file) with the SEC the Initial Shelf Registration
Statement on or prior to the Filing Date and shall use its commercially
reasonable best efforts to cause such Initial Shelf Registration Statement to
be declared effective under the Securities Act on or prior to the Effectiveness
Date.  The Initial Shelf Registration
Statement shall be on Form S-1 (or, if available, Form S-3) or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders (including, without limitation, one or more underwritten
offerings).  The Company and Guarantors
shall not, without the written consent of the Backstop Purchasers, permit any
securities other than the Registrable Notes to be included in any Shelf
Registration Statement (as 


 


8

















 


defined below). 
The Company shall (and shall cause each Guarantor to) use its
commercially reasonable best efforts to keep the Initial Shelf Registration
Statement continuously effective under the Securities Act until the earliest of
(i) the date on which the
Registrable Notes registered under such Shelf Registration Statement may be
sold, in the opinion of counsel to the Company, in a three-month period under Rule 144
without volume or other limits,  (ii) the
date all the Registrable Notes registered under such Shelf Registration
Statement have been sold and  (iii) two
years after the date on which such Shelf Registration Statement became
effective with respect to the offer and sale of the Registrable Notes, plus the
aggregate number of days in all applicable suspension periods set forth herein
(including days when such Shelf Registration Statement was not effective or use
thereof was suspended, including as a result of any of the events specified in Section 3(e),
Section 5(c) or Section 5(e)).  The Company shall notify each Holder when the
Initial Shelf Registration Statement has been declared effective.


 


(b)                                 Subsequent Shelf Registrations.  If
the Initial Shelf Registration Statement or any Subsequent Shelf Registration
Statement (as defined below) ceases to be effective for any reason at any time
during the period described in Section 3(a) (other than
because of the sale of all of the securities registered thereunder), the
Company shall (and shall cause each Guarantor to) use its commercially
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 30 days of such
cessation of effectiveness amend such Shelf Registration Statement in a manner
designed to obtain the withdrawal of the order suspending the effectiveness
thereof, or file (and cause each Guarantor to file) an additional shelf
registration statement pursuant to Rule 415 covering all of the
Registrable Notes covered by and not sold under the Initial Registration
Statement or any earlier Registration Statement (a “Subsequent Shelf Registration
Statement”).  If a
Subsequent Shelf Registration Statement is filed, the Company shall (and shall
cause each Guarantor to) use its commercially reasonable best efforts to cause
the Subsequent Shelf Registration Statement to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective during the period described in Section 3(a).  As used herein the term “Shelf Registration Statement”
means the Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statements.


 


(c)                                  Supplements and Amendments.  The
Company shall promptly amend any Shelf Registration Statement and/or amend or
supplement the Prospectus constituting a part thereof if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if
reasonably requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Shelf Registration
Statement, but only with respect to information relating to such Holders, or by
any underwriter of such Registrable Notes.


 


9






 










 


(d)                                 Provision of Information.  No
Holder shall be entitled to include any of its Registrable Notes in any Shelf
Registration Statement pursuant to this Agreement unless such Holder furnishes
to the Company and the Trustee in writing, within 20 days after receipt of a
written request therefor (such written request, a “Notice and Questionnaire”),
such information as the Company and the Trustee, after conferring with counsel
with regard to information relating to Holders that would be required by the
SEC to be included in such Shelf Registration Statement or Prospectus included
therein, may reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein, and no such Holder shall be entitled
to Additional Interest pursuant to Section 4 hereof unless and
until such Holder shall have provided such information.  The Company shall mail the Notice and
Questionnaire to the Holders no later than 30 days prior to the date of initial
filing of the Shelf Registration Statement with the SEC.  No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the initial
effective date of the Shelf Registration Statement, and no Holder may use the
Prospectus forming a part thereof for resales of Registrable Notes at any time,
unless such Holder has returned a completed and signed Notice and Questionnaire
to the Company by the deadline for response set forth therein; provided,
however, that Holders shall have at least 20 days from the date on which
the Notice and Questionnaire is first mailed to such Holders to return a
completed and signed Notice and Questionnaire to the Company.  Notwithstanding the foregoing, (x) upon
the request of any Holder that did not return a Notice and Questionnaire on a
timely basis or did not receive a Notice and Questionnaire because it was a
subsequent transferee of Registrable Notes after the Company mailed the Notice
and Questionnaire, the Company shall distribute a Notice and Questionnaire to
such Holders at the address set forth in the request and (y) upon receipt
of a properly completed Notice and Questionnaire from such Holder, the Company
shall use its commercially reasonable best efforts to name such Holder as a
selling securityholder in the Shelf Registration Statement by means of a
pre-effective amendment, by means of a post-effective amendment or, if
permitted by the SEC, by means of a Prospectus supplement to the Shelf
Registration Statement; provided, however, that the Company will
have no obligation to add Holders to the Shelf Registration Statement as
selling securityholders more frequently than once every 30 calendar days.


 


(e)                                  Blackout Periods. 
Notwithstanding anything to the contrary contained in this Agreement,
upon notice to Holders, the Company shall be entitled to suspend its obligation
to file any Shelf Registration Statement, file any amendment to a Shelf
Registration Statement, furnish any supplement or amendment to a Prospectus
included in a Shelf Registration Statement, make any other filing with the SEC
not otherwise required to be filed, cause any Shelf Registration Statement or
other filing with the SEC to become or remain effective or suspend the use of
the Prospectus included in any Shelf Registration Statement in the event that
and for a period of time (provided, that the Company and the Guarantors
shall have used their commercially reasonable best efforts to file such Shelf
Registration Statement or cause such Shelf Registration Statement to be
declared effective, as applicable) (a “Blackout Period”) not to exceed more than 60
consecutive days or 


 


10

















 


an aggregate of 90 days in any 12-month period if
the board of directors of the Company determines in good faith that (i) the
disclosure of an event, occurrence or other item at such time (that would not
otherwise be required to be disclosed) required to be disclosed in the
Prospectus or Shelf Registration Statement to permit the use thereof could
reasonably be expected to have a material adverse effect on the business,
operations or prospects of the Company and the Guarantors, taken as a whole,
(ii) the disclosure otherwise relates to a material corporate development
or other business transaction (including any financing, offering, acquisition, corporate
reorganization or other significant transaction) involving the Company or any
of its direct or indirect subsidiaries which has not been publicly disclosed
(and is not otherwise required to be disclosed), disclosure of which would be
materially adverse to the Company’s interests or (iii) changes in the
Registration Statement or related prospectus are required so that, as of such
date, such Registration Statement or prospectus does not include an untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading (provided, that
nothing in this clause (iii) shall relieve the Company of its obligation
to promptly update any such document to the extent provided elsewhere in this
Agreement).


 


4.                                       Additional Interest


 


(a)                                  The Company and each Guarantor acknowledge and
agree that the Holders of Registrable Notes will suffer damages if the Company
or any Guarantor fails to fulfill its material obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain
the extent of such damages with precision. 
Accordingly, the Company and the Guarantors agree to pay additional cash
interest on the Notes (“Additional
Interest”) under the circumstances and to the extent set forth
below (each of which shall be given independent effect):


 


(i)                                     if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration Statement has been filed with the SEC on or prior to
the Filing Date or (B) notwithstanding that the Company has consummated or
will consummate an Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not filed on or
prior to the date required by this Agreement, then, commencing on the day after
either such required filing date, Additional Interest shall accrue on the
principal amount of the Notes that have not been exchanged for Exchange Notes
over and above any stated interest at a rate of 2.0% per annum immediately
following such required filing date, subject to the provisos in the last
sentence of this paragraph;


 


(ii)                                  if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration Statement is declared effective by the SEC on or
prior to the Effectiveness Date or (B) notwithstanding that the Company
has consummated or will consummate an Exchange Offer, the Company is required
to file a Shelf Registration Statement and such Shelf Registration 


 


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Statement is not
declared effective by the SEC on or prior to the 90th day (or the 180th day, in
the event a Shelf Notice is delivered pursuant to Section 2(h)(i))
following the date such Shelf Registration Statement was filed, then,
commencing on the day after either such required effective date, Additional
Interest shall accrue on the principal amount of the Notes over and above any
stated interest at a rate of 2.0% per annum immediately following such required
effective date, subject to the provisos in the last sentence of this paragraph;


 


(iii)                               if (A) the Company (and any Guarantor) has not exchanged Exchange
Notes for all Notes validly tendered and not withdrawn in accordance with the
terms of the Exchange Offer on or prior to the date that is 50 days after the
effective date of the Exchange Offer Registration Statement, (B) if
applicable, a Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective or usable in connection
with resales of the Registrable Notes in accordance with and during the periods
specified in this Agreement, as applicable, at any time during the period
described in Section 3(a) (other than during a Blackout Period
or after such time as all Registrable Notes have been disposed of thereunder)
or (C) the Company issues a valid notice to suspend the use of the
Prospectus included in any Shelf Registration Statement and such suspension,
when taken together with all other suspensions, if any (but solely to the
extent not concurrent), during any 12-month period exceeds 90 days, then, in
each case, Additional Interest shall accrue on the principal amount of the
Notes over and above any stated interest at a rate of 2.0% per annum commencing
on (x) the 51st day after such effective date, in the case of
clause (A) above, (y) the day such Shelf Registration Statement
ceases to be effective or useable, in the case of clause (B) above, or (z) the
day the Prospectus in any Shelf Registration Statement is suspended for any
period in excess of 90 days during any 12-month period, in the case of clause (C) above,
subject to the provisos in the last sentence of this paragraph; or


 


(iv)                              if (A) an Exchange Offer Registration Statement (as defined in that
certain Registration Rights Agreement, dated as of March 15, 2010, among
the Company, the Guarantors party thereto and the Majority Backstop Purchasers
(as defined therein), covering the Existing Notes (the “Existing Registration Rights Agreement”)) is filed with
the SEC with respect to any Existing Notes and the Exchange Offer Registration
Statement has not been filed with the SEC, (B) if an Exchange Offer
Registration Statement (as defined in the Existing Registration Rights Agreement)
with respect to any Existing Notes is declared effective by the SEC but the
Exchange Offer Registration Statement is not declared effective by the SEC, or (C) an
Exchange Offer (as defined in the Existing Registration Rights Agreement) with
respect to the Existing Notes is consummated but an Exchange Offer is not
consummated, in each case within 30 days of such filing (in the case of (A)),
declaration of effectiveness (in the case of (B)), 


 


12

















 


or consummation (in
the case of (C)), Additional Interest shall accrue on the principal amount of
the Notes that have not been exchanged for Exchange Notes over and above any
stated interest rate at a rate of 2.0% per annum immediately after such
failure, subject to the provisos in the last sentence of this paragraph.


 


provided, however, that Additional Interest will not
accrue under more than one of the foregoing clauses (i), (ii), (iii) or (iv) at
any one time; provided  further, however, that the amount
of Additional Interest accruing on the Notes shall not exceed 2.0% per annum;
and provided  further, however, that (1) upon the
filing of the Exchange Offer Registration Statement, Initial Shelf
Registration Statement or Shelf Registration Statement (in the case of clause (i) above),
(2) upon the effectiveness of the Exchange Offer Registration Statement or
Shelf Registration Statement (in the case of clause (ii) above), (3) upon
the exchange of Exchange Notes for all Notes validly tendered and not withdrawn
(in the case of clause (iii)(A) above), (4) upon the effectiveness of
a Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii)(B) above), (5) upon the day the Prospectus in
any Shelf Registration Statement the use of which was previously suspended may
be used again (in the case of clause (iii)(C) above), or upon the filing
of the Exchange Offer Registration Statement, effectiveness of the Exchange
Offer Registration Statement or consummation of the Exchange Offer (in the case
of clause (iv) above), Additional Interest on the Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.


 


(b)                                 The Company shall notify the Trustee within
five Business Days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an “Event Date”).  Any amounts of Additional Interest due
pursuant to clause (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Section 4
will be payable in the form, on the dates and in the manner provided in the
Indenture and whether or not any interest would then be payable on such date,
commencing with the first such quarterly date occurring after any such
Additional Interest commences to accrue. 
The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Notes,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360.


 


5.                                       Registration Procedures


 


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


 


13

















 


(a)                                  Prepare and file with the SEC as soon as
practicable after the date hereof but in any event on or prior to the Filing
Date, the Exchange Offer Registration Statement, or if the Exchange Offer
Registration Statement is not filed because of the circumstances contemplated
by Section 2(h) or is otherwise required to be filed because
of the circumstances contemplated by Section 2(h), a Shelf
Registration Statement as prescribed by Section 3, and use its
commercially reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; provided
that, if (i) a Shelf Registration Statement is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto the Company shall (and
shall cause each Guarantor to), if requested, furnish at no charge to the
Holders of the Registrable Notes to be registered pursuant to such Registration
Statement (and to a single counsel for such Holders), each Participating
Broker-Dealer (and to its counsel) and the managing underwriters (and to their
counsel), if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at least
five Business Days prior to such filing). 
The Company and each Guarantor shall not file (and shall not allow any
of the other Guarantors to) any such Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders must
provide information for the inclusion therein without such Holders being
afforded an opportunity to review such documentation if the holders of a
majority in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the case
may be, or the managing underwriters, if any, or any of their respective
counsel shall reasonably object in writing on a timely basis.


 


(b)                                 Provide an indenture trustee for the
Registrable Notes or the Exchange Notes, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the first
Registration Statement; and in connection therewith, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its commercially
reasonable best efforts to cause such trustee to execute, all documents as may
be required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable such indenture to be so qualified in a
timely manner.


 


(c)                                  Prepare and file with the SEC such
pre-effective amendments and post-effective amendments to each Shelf
Registration Statement or Exchange Offer Registration Statement, as the case
may be, as may be necessary to keep such Registration Statement continuously
effective for the period described in Section 3(a) or the
Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and as so



 


14

















 


supplemented to be filed pursuant to Rule 424;
promptly amend or supplement each such Registration Statement to include the
Company’s quarterly and annual financial information and other material
developments (unless or until the Company is eligible to incorporate such
information by reference into the Registration Statement), during which time
sales of the Registrable Notes under the Registration Statement will be
suspended until such amendment or supplement is filed and effective; and comply
with the provisions of the Securities Act and the Exchange Act applicable to
them with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus.  The Company and each Guarantor shall not (and
shall not allow any other Guarantor to), during the period described in Section 3(a) or
the Applicable Period, as the case may be, voluntarily take any action that
would reasonably be expected to result in selling Holders of the Registrable
Notes covered by a Registration Statement or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period, unless such action is required by
applicable law, rule or regulation or permitted by this Agreement.


 


(d)                                 Furnish to such selling Holders and
Participating Broker-Dealers who so request in writing (i) upon the
Company’s receipt, a copy of the order of the SEC declaring such Registration
Statement and any post effective amendment thereto effective, (ii) such
reasonable number of copies of such Registration Statement and of each
amendment and supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such reasonable
number of copies of the Prospectus included in such Registration Statement
(including each preliminary Prospectus), any Issuer Free Writing Prospectus and
each amendment and supplement thereto, and such reasonable number of copies of
the final Prospectus as filed by the Company and each Guarantor pursuant to Rule 424(b),
in conformity with the requirements of the Securities Act and each amendment
and supplement thereto, and (iv) such other documents (including any
amendments required to be filed pursuant to clause (c) of this Section 5),
as any such Person may reasonably request in writing.  The Company and the Guarantors hereby consent
to the use of the Prospectus (including each preliminary Prospectus) and any
Issuer Free Writing Prospectus by each of the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus
and any amendment or supplement thereto.


 


(e)                                  If (i) a Shelf Registration Statement is
filed pursuant to Section 3, or (ii) a Prospectus contained in
an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period
relating thereto, the Company shall notify in writing the selling 


 


15

















 


Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, and the managing underwriters,
if any, and each of their respective counsel promptly (but in any event within
five Business Days) (A) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
(including in such notice a written statement that any Holder may, upon
request, obtain, without charge, one conformed copy (which may be in electronic
format) of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (B) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or the initiation
of any proceedings for that purpose, (C) intentionally omitted, (D) of
the receipt by the Company or any Guarantor of any notification with respect to
the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (E) of the happening of any event, the existence of any condition
of any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any Issuer Free Writing
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in, or amendments or supplements to, such Registration Statement,
Prospectus, Issuer Free Writing Prospectus or documents so that, in the case
of the Registration Statement and the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, (F) of any
reasonable determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement would be appropriate and (G) of any
request by the SEC for amendments to the Registration Statement or supplements
to the Prospectus or for additional information relating thereto.


 


(f)                                    Use its commercially reasonable best efforts
to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
any of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, to use its commercially reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible date.


 


(g)                                 If (i) a Shelf Registration Statement is
filed pursuant to Section 3, (ii) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period or (iii) reasonably
requested in writing by the managing 


 


16

















 


underwriters, if any, or the Holders of a majority
in aggregate principal amount of the Registrable Notes being sold,
(A) promptly incorporate in a Prospectus supplement or post-effective amendment
such information or revisions to information therein relating to such
underwriters or selling Holders as the managing underwriters, if any, or such
Holders or any of their respective counsel reasonably request in writing to be
included or made therein and (B) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated
in such Prospectus supplements or post-effective amendment.


 


(h)                                 Prior to any public offering of Registrable
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its commercially reasonable
best efforts to register or qualify, and cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be,
the underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as the case may be,
for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer or
any managing underwriter or underwriters, if any, reasonably request in
writing; if Exchange Notes held by Participating Broker-Dealers or Registrable
Notes are offered other than through an underwritten offering, the Company and
each Guarantor shall cause its counsel to perform Blue Sky investigations and
file any registrations and qualifications required to be filed pursuant to this
Section 5(h); use its commercially reasonable best efforts to keep each
such registration or qualification (or exemption therefrom) effective during
the period such Registration Statement is required to be kept effective; and
use its commercially reasonable best efforts to do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement; provided
that neither the Company nor any Guarantor shall be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified,
(ii) take any action that would subject it to general service of process
in any such jurisdiction where it is not then so subject or (iii) subject
itself to taxation in any such jurisdiction where it is not then so subject.


 


(i)                                     If (i) a Shelf Registration Statement is
filed pursuant to Section 3 or (ii) a Prospectus contained in
an Exchange Offer Registration Statement filed pursuant to Section 2
is requested to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company, and enable such 


 


17

















 


Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any,
or Holders may reasonably request in writing.


 


(j)                                     Use its commercially reasonable best efforts
to cause the Registrable Notes covered by any Registration Statement to be
registered with or approved by such United States governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or the
underwriter, if any, to consummate the disposition of such Registrable Notes,
except as may be required solely as a consequence of the nature of such selling
Holder’s business, in which case the Company shall (and shall cause each
Guarantor to) cooperate (at such selling Holder’s expense) in all reasonable
respects with the filing of such Registration Statement and the granting of
such approvals; provided that neither the Company nor any Guarantor
shall be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action that
would subject it to general service of process in any jurisdiction where it is
not then so subject or (iii) subject itself to taxation in any such
jurisdiction where it is not then so subject.


 


(k)                                  If (i) a Shelf Registration Statement is
filed pursuant to Section 3, or (ii) a Prospectus contained in
an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
upon the occurrence of any event contemplated by Section 5(e)(E) or
Section 5(e)(F) hereof, as promptly as practicable, prepare
and file with the SEC, at the expense of the Company and the Guarantors, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any Issuer Free Writing Prospectus or
any document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the purchasers
of the Exchange Notes to whom such Prospectus or Issuer Free Writing Prospectus
will be delivered by a Participating Broker-Dealer, such Prospectus or Issuer
Free Writing Prospectus will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and, if SEC review is required, use its commercially
reasonable best efforts to cause such post-effective amendment to be declared
effective as soon as possible.


 


(l)                                     Intentionally omitted.


 


(m)                               Prior to the initial issuance of the Exchange
Notes, (i) provide the Trustee with one or more certificates for the
Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Exchange Notes.


 


18

















 


(n)                                 If a Shelf Registration Statement is filed
pursuant to Section 3, enter into such agreements (including an
underwriting agreement in form, scope and substance as is customary in underwritten
offerings of debt securities similar to the Registrable Notes, as may be
appropriate in the circumstances) and take all such other actions in connection
therewith (including those reasonably requested in writing by the managing
underwriters, if any, or the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold) as is customary in offerings of
debt securities similar to the Registrable Notes as may be appropriate in
connection therewith in order to expedite or facilitate the registration or the
disposition of such Registrable Notes, and in such connection, whether or not
an underwriting agreement is entered into and whether or not the registration
is an underwritten registration (except as set forth below), (i) make such
representations and warranties to the underwriters, if any, with respect to the
business of the Company and its subsidiaries as then conducted, and the
Registration Statement, Prospectus, Issuer Free Writing Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in offerings of debt securities similar to the
Registrable Notes, as may be appropriate in the circumstances; (ii) use
commercially reasonable best efforts to obtain an opinion of counsel to the
Company and the Guarantors and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, or the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold), addressed to each selling Holder
and each of the underwriters, if any, covering the matters customarily covered
in opinions of counsel to the Company and the Guarantors requested in offerings
of debt securities similar to the Registrable Notes, as may be appropriate in
the circumstances; (iii) use commercially reasonable best efforts to
obtain “cold comfort” letters and updates thereof (which letters and updates
(in form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, or the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold) from the independent certified
public accountants of the Company and the Guarantors (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold,
such letters to be in customary form and covering matters of the type
customarily covered in “cold comfort” letters in connection with offerings of
debt securities similar to the Notes, as may be appropriate in the
circumstances, and such other matters as reasonably requested in writing by the
underwriters, if any, or such Holders; and (iv) deliver such documents and
certificates as may be reasonably requested in writing by the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold or
the managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any
conditions 


 


19

















 


contained in the underwriting agreement or other
similar agreement entered into by the Company or any Guarantor.


 


(o)                                 If (i) a Shelf Registration Statement is
filed pursuant to Section 3, or (ii) a Prospectus contained in
an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
make available for inspection by a representative of the Holders of such
Registrable Notes being sold (as selected by the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold), and a
representative of each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of Registrable Notes, if
any, and any attorney, accountant or other agent retained by any such selling
Holders (as selected by a majority in aggregate principal amount of the
Registrable Notes being sold) or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the “Inspectors”), at the offices where
normally kept, with reasonable advance notice and during reasonable business
hours, all financial and other records and pertinent corporate documents of the
Company and its subsidiaries (collectively, the “Records”) as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested in
writing by any such Inspector in connection with such Registration
Statement.  Each Inspector shall agree in
writing that it will keep the Records confidential and not disclose any of the
Records unless (A) the disclosure of such Records is, in the opinion of
counsel to such Inspector, necessary to avoid or correct a misstatement or
omission in such Registration Statement, (B) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (C) the information in such Records is public or has been
made generally available to the public other than as a result of a disclosure
or failure to safeguard by such Inspector or (D) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding, directly or
indirectly, involving such Inspector and arising out of, based upon, related
to, or involving this Agreement, or any transaction contemplated hereby or arising
hereunder.  Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be required to
agree that information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is made generally available to the public. 
Each Inspector, each selling Holder of such Registrable Notes and each
such Participating Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give reasonable advance notice to the Company and, to
the extent practicable, use its commercially reasonable best efforts to allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential at its expense.


 


20






 










 


(p)                                 Prepare and file in a timely manner all
documents and reports required to be filed by the Company pursuant to the
Exchange Act and, to the extent the Company’s obligation to file such reports
pursuant to Section 15(d) of the Exchange Act expires before the
expiration of the effectiveness period of the Registration Statement as
required by Section 3(a), the Company shall register the
Registrable Notes and the Exchange Notes under the Exchange Act and shall
maintain such registration through the effectiveness period required by Section 3(a).


 


(q)                                 Otherwise use its commercially reasonable best
efforts to comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to the security holders of
the Company with regard to any applicable Registration Statement earning
statements satisfying the provisions of section 11(a) of the Securities
Act and Rule 158.


 


(r)                                    Upon consummation of an Exchange Offer, use
its commercially reasonable best efforts to obtain an opinion of counsel to the
Company and the Guarantors, addressed to the Trustee for the benefit of all
Holders participating in the Exchange Offer, to the effect that (i) the
Company and the Guarantors have duly authorized, executed and delivered the
Exchange Notes and the Indenture, (ii) the Exchange Notes and the
Indenture constitute legal, valid and binding obligations of the Company and
the Guarantors, enforceable against the Company and the Guarantors in
accordance with their respective terms, except as such enforcement may be
subject to customary United States and foreign exceptions and (iii) all
obligations of the Company and the Guarantors under the Exchange Notes and the
Indenture are secured by Liens (as defined in the Indenture) on the assets
securing the obligations of the Company and the Guarantors under the Notes, the
Indenture and the Collateral Documents (as defined in the Indenture) to the
extent and as discussed in the Registration Statement, in each case, subject to
customary assumptions, limitations, reliances and qualifications.


 


(s)                                  If the Exchange Offer is to be consummated,
upon delivery of the Notes by the Holders to the Company and the Guarantors (or
to such other Person as directed by the Company and the Guarantors) in exchange
for the Exchange Notes, the Company and the Guarantors shall mark, or cause to
be marked, on such Notes that the Exchange Notes are being issued as substitute
evidence of the indebtedness originally evidenced by the Notes; provided
that in no event shall such Notes be marked as paid or otherwise satisfied.


 


(t)                                    Cooperate with each seller of Registrable
Notes covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the FINRA.


 


The
Company may require the Holders or Participating Broker-Dealers to furnish to
the Company such information regarding the Holder or Participating
Broker-Dealer and the proposed distribution by such Holder or Participating
Broker-Dealers as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of the 


 


21

















 


Registrable
Notes, and no Holder shall be entitled to be named as a selling stockholder in
any Registration Statement and no Holder or Participating Broker-Dealers shall
be entitled to use the Prospectus forming a part thereof if such Holder or
Participating Broker-Dealers does not provide such information to the
Company.  Each Holder and Participating
Broker-Dealer further agrees to furnish promptly to the Company in writing all
information required from time to time to make the information previously
furnished by such Holder or Participating Broker-Dealers not misleading.


 


Each
Holder of Registrable Notes and each Participating Broker-Dealer agrees by
acquisition of such Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Company of the happening of any event of the kind described in Section 3(e),
5(e)(B), 5(e)(D), 5(e)(E), 5(e)(F) or 5(e)(G),
such Holder will forthwith discontinue disposition of such Registrable Notes
covered by a Registration Statement and such Participating Broker-Dealer will
forthwith discontinue disposition of such Exchange Notes pursuant to any
Prospectus and, in each case, forthwith discontinue dissemination of such
Prospectus until such Holder’s or Participating Broker-Dealer’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k),
or until it is advised in writing (the “Advice”) by
the Company and the Guarantors that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto and,
if so directed by the Company and the Guarantors, such Holder or Participating
Broker-Dealer, as the case may be, will deliver to the Company all copies,
other than permanent file copies, then in such Holder’s or Participating
Broker-Dealer’s possession, of the Prospectus covering such Registrable Notes
current at the time of the receipt of such notice.  In the event the Company and the Guarantors
shall give any such notice, the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each Participating Broker-Dealer
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) or (y) the Advice.


 


Each
Holder and Participating Broker-Dealer agrees with the Company that it will not
prepare or have prepared on its behalf or use or refer to, any Free Writing
Prospectus, and will not distribute any written materials in connection with
the offer or sale of the Registrable Notes or the Exchange Notes without the
prior express written consent of the Company and, in connection with any
underwritten offering, the underwriters. 
Any such Free Writing Prospectus consented to by the Company and the
underwriters, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.”  The Company
represents and agrees that it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus,
including in respect of timely filing with the SEC, legending and record
keeping.


 


6.                                       Registration Expenses


 


(a)                                  All fees and expenses incident to the
performance of or compliance with this Agreement by the Company and the
Guarantors shall be borne by the Company and the Guarantors, whether or not the
Exchange Offer or a Shelf Registration Statement is filed or becomes effective,
including, without limitation, (i) all registration and filing fees,
including, without limitation, (A) fees with respect to 


 


22

















 


filings required to be made with FINRA in
connection with any underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws as provided in Section 5(h) hereof
(including, without limitation, reasonable and documented fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the Holders are located, in the case of the
Exchange Notes, or (y) as provided in Section 5(h), in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period), (ii) printing expenses,
including, without limitation, expenses of printing Prospectuses if the
printing of Prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or by
any Participating Broker-Dealer during the Applicable Period, as the case may
be, (iii) messenger, telephone and delivery expenses incurred in
connection with the performance of their obligations hereunder, (iv) fees
and disbursements of counsel for the Company, the Guarantors and, subject to Section 6(b),
the Holders, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5 (including, without
limitation, the expenses of any special audit and “cold comfort” letters
required by or incident to such performance), (vi) rating agency fees and
the fees and expenses incurred in connection with the listing of the Securities
to be registered on any securities exchange, (vii) Securities Act
liability insurance, if the Company and the Guarantors desire such insurance, (viii) fees
and expenses of all other Persons retained by the Company and the Guarantors, (ix) fees
and expenses of any “qualified independent underwriter” or other independent
appraiser participating in an offering in accordance with FINRA Rules, but only
where the need for such a “qualified independent underwriter” arises due to a
relationship with the Company and the Guarantors, (x) internal expenses of
the Company and the Guarantors (including, without limitation, all salaries and
expenses of officers and employees of the Company or the Guarantors performing
legal or accounting duties), (xi) the expense of any annual audit, (xii) the
fees and expenses of the Trustee and the exchange agent and (xiii) the
expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement.


 


(b)                                 The Company and the Guarantors shall reimburse
the Holders for the reasonable and documented fees and disbursements of not
more than one counsel chosen by the Holders of a majority in aggregate
principal amount of the Registrable Notes to be included in any Registration
Statement.  The Company and the
Guarantors shall pay all documentary, stamp, transfer or other transactional
taxes attributable to the issuance or delivery of the Exchange Notes in
exchange for the Notes; provided that the Company shall not be required
to pay taxes payable in respect of any transfer involved in the issuance or
delivery of any Exchange Note in a name other than that of the Holder of the
Note in respect of which such Exchange Note is being issued.  The Company and the Guarantors shall
reimburse the Holders for 


 


23

















 


the reasonable and documented fees and expenses
(including reasonable fees and expenses of not more than one counsel to the
Holders) relating to any enforcement of any rights of the Holders under this
Agreement.


 


7.                                       Indemnification


 


(a)                                  Indemnification by the Company and the
Guarantors.  The Company and the Guarantors jointly and
severally agree to indemnify and hold harmless the Backstop Purchasers, each
Holder of Registrable Notes or Exchange Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, each Person,
if any, who controls each such Person (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Person, Participating
Broker-Dealer and controlling person, to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable and documented costs of preparation and
reasonable attorneys’ fees as provided in this Section 7) and
expenses (including, without limitation, reasonable costs and expenses incurred
in connection with investigating, preparing, pursuing or defending against any
of the foregoing) (collectively, “Losses”), as incurred, 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, Prospectus or Issuer Free Writing Prospectus (as
amended or supplemented), or in any preliminary prospectus or any other
document prepared by the Company and used to sell the Registrable Notes, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as
such Losses are based upon information relating to such Person or Participating
Broker-Dealer and furnished in writing to the Company and the Guarantors (or
reviewed and approved in writing) by such Person or Participating Broker-Dealer
or their counsel expressly for use therein; provided, however,
that the Company and the Guarantors will not be liable to any Indemnified Party
(as defined below) under this Section 7 to the extent Losses were
caused by an untrue statement or omission or alleged untrue statement or
omission that was contained or made in any preliminary prospectus and corrected
in the Prospectus or any amendment or supplement thereto if (i) the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceedings, (ii) any such Losses resulted from an action,
claim or suit by any Person who purchased Registrable Notes or Exchange Notes
which are the subject thereof from such Indemnified Party and (iii) it is
established in the related proceeding that such Indemnified Party failed to
deliver or provide a copy of the Prospectus (as amended or supplemented) to
such Person with or prior to the confirmation of the sale of such Registrable
Notes or Exchange Notes sold to such Person if required by applicable law,
unless such failure to deliver or provide a copy of the Prospectus (as amended
or supplemented) was a result of noncompliance by the Company with Section 5
of this Agreement.  The Company and the
Guarantors also agree to 


 


24

















 


indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, agents and employees and each Person
who controls such Persons (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders or
the Participating Broker-Dealer.


 


(b)                                 Indemnification by Holder.  In
connection with any Registration Statement, Prospectus or Issuer Free Writing
Prospectus (as amended or supplemented), or any preliminary prospectus or any
other document prepared by the Company to sell the Registrable Notes in which a
Holder is participating, such Holder shall furnish to the Company and the
Guarantors in writing such information as the Company and the Guarantors
reasonably request for use in connection with any Registration Statement,
Prospectus or Issuer Free Writing Prospectus (as amended or supplemented), or
any preliminary prospectus or any other document prepared by the Company to
sell the Registrable Notes and shall indemnify and hold harmless the Company,
the Guarantors, their respective directors and officers and each Person, if
any, who controls the Company and the Guarantors (within the meaning of Section 15
of the Securities Act and Section 20(a) of the Exchange Act), and the
directors, officers and partners of such controlling persons, to the fullest
extent lawful, from and against all Losses 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, Prospectus or Issuer Free Writing Prospectus (as
amended or supplemented), or in any preliminary prospectus or in any other
document prepared by the Company to sell the Registrable Notes, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading to the extent, but
only to the extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact was contained
in or omitted from any information so furnished in writing by such Holder to
the Company and the Guarantors expressly for use therein.  Notwithstanding the foregoing, in no event
shall the liability of any selling Holder be greater in amount than such Holder’s
Maximum Contribution Amount (as defined below).


 


(c)                                  Conduct of Indemnification Proceedings.  If any
proceeding shall be brought or asserted against any Person entitled to
indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the party
or parties from which such indemnity is sought (the “Indemnifying Party”
or “Indemnifying Parties”,
as applicable) in writing; provided, that the failure to so notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from any
obligation or liability except to the extent (but only to the extent) that the
Indemnifying Parties have been prejudiced materially by such failure.


 


The
Indemnifying Party shall have the right, exercisable by giving written notice
to an Indemnified Party, within 20 Business Days after receipt of written
notice 


 


25

















 


from
such Indemnified Party of such proceeding, to assume, at its expense, the
defense of any such proceeding; provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties unless:  (i) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (ii) the Indemnifying Party
shall have failed promptly to assume the defense of such proceeding or shall
have failed to employ counsel reasonably satisfactory to such Indemnified
Party; or (iii) the named parties to any such proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party or any of its affiliates or controlling persons, and such Indemnified
Party shall have been advised by counsel that there may be one or more defenses
available to such Indemnified Party that are in addition to, or in conflict
with, those defenses available to the Indemnifying Party or such affiliate or
controlling person (in which case, if such Indemnified Party notifies the
Indemnifying Parties in writing that it elects to employ separate counsel at
the expense of the Indemnifying Parties, the Indemnifying Parties shall not
have the right to assume the defense and the reasonable fees and expenses of
such counsel shall be at the expense of the Indemnifying Party; it being
understood, however, that, the Indemnifying Party shall not, in connection with
any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).


 


No
Indemnifying Party shall be liable for any settlement of any such proceeding
effected without its written consent, which 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 proceeding, each Indemnifying Party jointly and
severally agrees, subject to the exceptions and limitations set forth above, to
indemnify and hold harmless each Indemnified Party from and against any and all
Losses by reason of such settlement or judgment.  The Indemnifying Party shall not (without the
written consent of such Indemnified Party) consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to each Indemnified Party of a
release, in form and substance reasonably satisfactory to the Indemnified
Party, from all liability in respect of such proceeding for which such
Indemnified Party would be entitled to indemnification hereunder (whether or
not any Indemnified Party is a party thereto).


 


(d)                                 Contribution.  If the
indemnification provided for in this Section 7 is unavailable to an
Indemnified Party or is insufficient to hold such Indemnified Party harmless
for any Losses in respect of which this Section 7 would otherwise
apply by its terms (other than by reason of exceptions provided in this Section 7),
then each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to contribute to
the amount paid or payable by such Indemnified Party as a result of such Losses
(i) in such 


 


26

















 


proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, if any, from the
offering of the Notes and the Exchange Notes, on the one hand, and by the
Holders from the offering of or the receiving of Notes or Exchange Notes
registered under the Securities Act, on the other hand, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and such Indemnified Party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party, on the one hand, and Indemnified
Party, on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. 
The amount paid or payable by an Indemnified Party as a result of any
Losses shall be deemed to include any legal or other fees or expenses incurred
by such party in connection with any proceeding, to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in Section 7(a) or Section 7(b) was
available to such party.


 


The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata
allocation or by another method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph.  Notwithstanding the
provisions of this Section 7(d), a selling Holder shall not be
required to contribute, in the aggregate, any amount in excess of such Holder’s
Maximum Contribution Amount.  A selling
Holder’s “Maximum Contribution Amount”
shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over (ii) the
aggregate amount of damages that 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 7(d) are
several in proportion to the respective principal amount of the Registrable
Notes or Exchange Notes held by each Holder hereunder and not joint.  The Company’s and Guarantors’ obligations to
contribute pursuant to this Section 7(d) are joint and
several.


 


The
indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.


 


8.                                       Rules 144 and 144A


 


The
Company covenants that it shall (a) file the reports required to be filed
by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time 


 


27

















 


the
Company is not required to file such reports, it will, upon the written request
of any Holder of Registrable Notes, make publicly available other information
necessary to permit sales pursuant to Rule 144 and Rule 144A and (b) take
such further action as any Holder may reasonably request in writing, all to the
extent required from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 and Rule 144A. 
Upon the request of any Holder, the Company shall deliver to such Holder
a written statement as to whether it has complied with such information and
requirements.


 


9.                                       Underwritten Registrations of Registrable Notes


 


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


 


No
Holder of Registrable Notes may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder’s Registrable
Notes on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.


 


10.                                 Miscellaneous


 


(a)                                  Remedies.  In the
event of a breach by either the Company or any of the Guarantors of any of
their respective obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights provided herein, in the Indenture or, in
the case of the Backstop Purchasers, in the Second Backstop Commitment
Agreement, or granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement.  The Company and the Guarantors agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by either the Company or any of the Guarantors 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, the Company shall
(and shall cause each Guarantor to) waive the defense that a remedy at law
would be adequate.


 


(b)                                 No Inconsistent Agreements.  The
Company and each of the Guarantors have not entered, as of the date hereof, and
the Company and each of the Guarantors shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Securities in this
Agreement or otherwise conflicts with the provisions hereof.  Other than the Existing Registration Rights
Agreement and the Registration Rights Agreement, dated March 15, 2010,
with respect to the Company’s equity 


 


28

















 


securities, the Company and each of the Guarantors
have not entered and will not enter into any agreement with respect to any of
its securities that will grant to any Person piggy-back rights with respect to
a Registration Statement.


 


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


 


(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, other than with the prior written consent of (i) the Company and
the Guarantors (except as expressly contemplated by this Agreement) and (ii) (A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes or (B) where specified herein, the Backstop
Purchasers; provided, however, that Section 7 and
this Section 10(d) may not be amended, modified or
supplemented without the prior written consent of each Holder.  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being tendered pursuant to the Exchange Offer or sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being tendered or being sold by such Holders pursuant to such
Shelf Registration Statement, unless approval of the Backstop Purchasers is otherwise
required.


 


(e)                                  Termination of the Company’s Obligations.  The
Company shall have no further obligations pursuant to this Agreement at such
time as no Registrable Notes are outstanding after their original issuance, provided,
however, that the Company’s obligations under Sections 7 and 8
(and any related definitions) shall remain in full force and effect following
such time.


 


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


 


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


 


(ii)                                  if sent other than by registered or certified mail to the Company or any
Guarantor, as follows:


 


Aventine
Renewable Energy Holdings, Inc.


 


29

















 


120
North Parkway Drive


Pekin, IL  61554


Facsimile
No.: (309) 346-0742


Attention:         Chief Accounting & Compliance Officer


 


(iii)                               if sent by registered or certified mail to the Company or any Guarantor,
as follows:


 


Aventine
Renewable Energy Holdings, Inc.


P. O. Box 1800


Pekin, IL 
61555-1800


Facsimile
No.: (309) 346-0742


Attention:         Chief Accounting & Compliance Officer


 


All
such notices and communications shall be deemed to have been duly given:  when delivered by hand, if personally
delivered; five Business Days after being deposited in the United States mail,
postage prepaid, if mailed; one Business Day after being timely delivered to a
next-day air courier guaranteeing overnight delivery; and when receipt is
acknowledged by the addressee, if telecopied.


 


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


 


(g)                                 Successors and Assigns.  This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto, including, without limitation and
without the need for an express assignment, subsequent Holders of Securities.


 


(h)                                 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.


 


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


 


(j)                                     Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAW.  EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF ITS 


 


30

















 


PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. 
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  EACH PARTY HERETO IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADDRESS INDICATED FOR SUCH PARTY IN SECTION 10(f),
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER
JURISDICTION.


 


(k)                                  Severability.  If any
term, provision, covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially 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
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.


 


(l)                                     Securities Held by the Company or Its
Affiliates.  Whenever the consent or approval of Holders
of a specified percentage of Securities is required hereunder, Securities held
by the Company or any affiliates controlled by the Company shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.


 


(m)                               Third Party Beneficiaries; All Holders and
Participating Broker-Dealers Bound.  Holders
not party to this Agreement and Participating Broker-Dealers are intended third
party beneficiaries of this Agreement and this Agreement may be enforced by
such Persons so long as such Person seeking to enforce this Agreement has
agreed to comply, and has complied, with its obligations under this Agreement.


 


31

















 


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


 


(o)                                 Survival.  The
indemnification and contribution obligations under Section 7 shall
survive the termination of the Company’s and any Guarantor’s obligations under Section 2
and Section 3.


 


[Remainder of page intentionally left blank.]


 


32






 










 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the date first written above.


 


	
   

  	
  AVENTINE
  RENEWABLE ENERGY

  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Chief Accounting & Compliance Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Chief Accounting & Compliance Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY – 

  AURORA WEST, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  NEBRASKA
  ENERGY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY – MT. 

  VERNON, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  POWER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Brennan

  
	
   

  	
   

  	
  Name:
  William J. Brennan

  
	
   

  	
   

  	
  Title:
  Treasurer

  



 


 


[Signature Page to
Registration Rights Agreement]


 

















 


	
   

  	
  ACCEPTED
  AND AGREED TO:

  
	
   

  	
   

  	
   

  
	
   

  	
  BRIGADE
  CAPITAL MANAGEMENT, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond Luis

  
	
   

  	
   

  	
  Name:
  Raymond Luis

  
	
   

  	
   

  	
  Title:
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SENATOR
  INVESTMENT GROUP LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward Larmann

  
	
   

  	
   

  	
  Name:
  Edward Larmann

  
	
   

  	
   

  	
  Title:
  CFO

  



 


 


[Signature Page to
Registration Rights Agreement]


 

















 


ANNEX I


 


Holders


 


Standard General Master Fund, L.P.


 


Standard General OC Master Fund, L.P.


 


Third Avenue Trust, on behalf of Third Avenue
Focused Credit Fund


 


Third Avenue Value Income Fund, L.P.


 


Continental Casualty Company


 


Seawall OC Fund, Ltd.


 


Seawall Credit Value Master Fund, Ltd.


 


Atlas Master Fund, Ltd.


 


Balyasny Dedicated Investor Master Fund, Ltd.


 


Atlas Fundamental Trading Master Fund, Ltd.


 


Balamat Cayman Fund, Ltd.


 


Brencourt Credit Opportunities Master, Ltd.


 


Lakewater Total Return Opportunity Fund, LP


 


Wilfrid Aubrey International LTD


 


Wilfrid Aubrey Growth Fund LP


 


David Koenig


 


Rita Aramburo-Layton


 

















 


ANNEX II


 


Backstop Purchasers


 


Brigade Capital Management, LLC


 


Senator Investment Group LP