Exhibit 4.3





Exhibit 4.3




REGISTRATION RIGHTS AGREEMENT




Dated as of November 16, 2010




Among




SUNGARD DATA SYSTEMS INC.,




THE GUARANTORS LISTED ON SCHEDULE I HERETO




and




J.P. MORGAN SECURITIES LLC




and




GOLDMAN, SACHS & CO.




As Representatives for the Initial Purchasers




73/8% Senior Notes due 2018




and




75/8% Senior Notes due 2020






 


 









 







REGISTRATION RIGHTS AGREEMENT




This Registration Rights Agreement (this “Agreement”) is dated as of November 16,
2010, among SUNGARD DATA SYSTEMS INC., a Delaware corporation (the “Company”), the
guarantors of the Notes (as defined below) listed on Schedule I hereto (the
“Guarantors”) and J.P. MORGAN SECURITIES LLC and GOLDMAN, SACHS & CO., as the
representatives (the “Representatives”) of the several initial purchasers (the “Initial
Purchasers”) named on Schedule I to the Purchase Agreement (as defined below).



This Agreement is entered into in connection with the Purchase Agreement, dated as of
November 1, 2010 (the “Purchase Agreement”), by and among the Company, the Guarantors and
the Representatives, which provides for, among other things, the sale by the Company to the Initial
Purchasers of (i) $900,000,000 aggregate principal amount of the Company’s 73/8% Senior Notes due
2018 (the “2018 Notes”), which will be guaranteed by the Guarantors, and (ii) $700,000,000
aggregate principal amount of the Company’s 75/8% Senior Notes due 2020 (the “2020 Notes”),
which will be guaranteed by the Guarantors. The 2018 Notes and the 2020 Notes may each be referred
to herein as a “Series of Notes”. The terms “Note” or “Notes” may refer to
one or more notes issued in either Series of Notes. Pursuant to the Purchase Agreement and the
Indentures (as defined below), the Guarantors are required to guarantee (collectively, the
“Guarantees”) the Company’s obligations under the Notes and the Indentures. References to
the “Securities” shall mean one or more Notes in either Series of Notes and the Guarantees
thereof. In order to induce the Initial Purchasers (including the Market-Maker) to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and any subsequent holder or holders of the
Securities. The execution and delivery of this Agreement is a condition to the Initial Purchasers’
obligations under the Purchase Agreement.




The parties hereby agree as follows:




1. Definitions




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




2018 Notes: See the introductory paragraphs hereto.




2020 Notes: See the introductory paragraphs hereto.




Additional Interest: See Section 5(a) hereof.




Advice: See the last paragraph of Section 6 hereof.




Agreement: See the introductory paragraphs hereto.




Applicable Period: See Section 2(b) hereof.




Business Day: Shall have the meaning ascribed to such term in Rule 14d-1 under
the Exchange Act.


 


 









 






Company: See the introductory paragraphs hereto.




Effectiveness Date: With respect to any Shelf Registration Statement, the
90th day after the Filing Date with respect thereto; provided,
however, that if the Effectiveness Date would otherwise fall on a day that is not a
Business Day, then the Effectiveness Date shall be the next succeeding Business Day.




Effectiveness Period: See Section 3(a) hereof.




Event Date: See Section 5(b) hereof.




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




Exchange Notes: See Section 2(a) hereof.




Exchange Offer: See Section 2(a) hereof.




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




Exchange Securities: See Section 2(a) hereof.




Existing Notes: The Company’s outstanding $250.0 million 4.875% senior secured
notes due 2014, $1,600.0 million 9.125% senior notes due 2013, $1,000.0 million 10.25%
senior subordinated notes due 2015 and $500.0 million 10.625% senior notes due 2015.




Filing Date: The 90th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; provided, however, that if the
Filing Date would otherwise fall on a day that is not a Business Day, then the Filing Date
shall be the next succeeding Business Day.




FINRA: See Section 6(r) hereof.




Guarantees: See the introductory paragraphs hereto.




Guarantors: See the introductory paragraphs hereto.




Holder: Any holder of a Registrable Security or Registrable Securities.




Indentures: (i) The indenture, dated as of the date hereof, among the Company,
the Guarantors and The Bank of New York Mellon, as trustee, pursuant to which the 2018 Notes
are being issued (the “2018 Indenture”) and (ii) the indenture, dated as of the date
hereof, among the Company, the Guarantors and The Bank of New York Mellon, as trustee,
pursuant to which the 2020 Notes are being issued (the “2020 Indenture”), each
indenture as amended or supplemented from time to time in accordance with the terms thereof.




Information: See Section 6(n) hereof.


 


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Initial Purchasers: See the introductory paragraphs hereto.




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




Inspectors: See Section 6(n) hereof.




Issue Date: November 16, 2010, the date of original issuance of the Notes.




Market-Maker: See Section 4(a) hereof.




Market-Making Registration: See Section 4(a)(i) hereof.




Market-Making Registration Statement: See Section 4(a)(i) hereof.




New Guarantees: See Section 2(a) hereof.




Notes: See the introductory paragraphs hereto.




Participant: See Section 8(a) hereof.




Participating Broker-Dealer: See Section 2(b) hereof.




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




Private Exchange: See Section 2(b) hereof.




Private Exchange Notes: See Section 2(b) hereof.




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




Purchase Agreement: See the introductory paragraphs hereof.




Records: See Section 6(n) hereof.




Registrable Securities: Each Security upon its original issuance and at all
times subsequent thereto, each Exchange Security as to which Section 2(c)(iv) hereof is
applicable upon original issuance and at all times subsequent thereto and each Private
Exchange Note (and the related Guarantees) upon original issuance thereof and at all times
subsequent thereto, until, in each case, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Securities as to which Section
2(c)(iv) hereof is applicable, the Exchange Offer Registration Statement) covering such
Security, Exchange Security or Private Exchange Note (and the related Guarantees) has been
declared effective by the SEC and such Security, Exchange Security or such Private Exchange
Note (and the related Guarantees), as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Security has been exchanged pursuant
to the Exchange Offer for an Exchange Security or Exchange Securities that may be resold
without restriction under state and federal securities laws or (iii) such Security, Exchange
Security or Private Exchange Note (and the related Guarantees), as the case may be, ceases
to be outstanding for purposes of the applicable Indenture.


 


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Registration Statement: Any registration statement of the Company that covers
any of the Securities, the Exchange Securities or the Private Exchange Notes (and the
related Guarantees) filed with the SEC under the Securities Act, including, in each case,
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 144: Rule 144 under the Securities Act.




Rule 144A: Rule 144A under the Securities Act.




Rule 405: Rule 405 under the Securities Act.




Rule 415: Rule 415 under the Securities Act.




Rule 424: Rule 424 under the Securities Act.




SEC: The U.S. Securities and Exchange Commission.




Securities: See the introductory paragraphs hereto.




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




Shelf Notice: See Section 2(c) hereof.




Shelf Registration: See Section 3(b) hereof.




Shelf Registration Statement: Any Registration Statement relating to a Shelf
Registration.




Shelf Suspension Period: See Section 3(a) hereof.




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




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


 


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Trustee: (i) The trustee under the 2018 Indenture, (ii) the trustee under the
2020 Indenture and (iii) the trustee under any indenture(s) (if different) governing the
Exchange Securities and Private Exchange Notes (and the related Guarantees).




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




Except as otherwise specifically provided, all references in this Agreement to acts,
laws, statutes, rules, regulations, releases, forms, no-action letters and other regulatory
requirements (collectively, “Regulatory Requirements”) shall be deemed to refer also
to any amendments thereto and all subsequent Regulatory Requirements adopted as a
replacement thereto having substantially the same effect therewith; provided that
Rule 144 shall not be deemed to amend or replace Rule 144A.




2. Exchange Offer




(a) Unless the Exchange Offer would violate applicable law or any applicable
interpretation of the staff of the SEC, the Company and the Guarantors shall use reasonable
best efforts to file with the SEC a Registration Statement (the “Exchange Offer
Registration Statement”) on an appropriate registration form with respect to a
registered offer (the “Exchange Offer”) to exchange any and all of the Registrable
Securities for a like aggregate principal amount of debt securities of the Company (the
“Exchange Notes”), guaranteed, to the extent applicable, on an unsecured senior
basis by the Guarantors (the “New Guarantees” and, together with the Exchange Notes,
the “Exchange Securities”), that are identical in all material respects to such
Series of Notes except that (i) the Exchange Notes shall contain no restrictive legend
thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on
such Series of Notes or, if no such interest has been paid, from the Issue Date and (iii)
the Exchange Securities shall be entitled to the benefits of the applicable Indenture or a
trust indenture which is identical in all material respects to such Indenture (other than
such changes to the Indentures or any such identical trust indenture as are necessary to
comply with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable laws. The Company and the Guarantors shall use reasonable
best efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement
with respect to the Exchange Offer; (y) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to
the 360th day following the Issue Date.




 


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Each Holder (including, without limitation, each Participating Broker-Dealer) that
participates in the Exchange Offer, as a condition to participation in the Exchange Offer,
will be required to represent to the Company in writing (which may be contained in the
applicable letter of transmittal) that: (i) any Exchange Securities acquired in exchange
for Registrable Securities tendered are being acquired in the ordinary course of business of
the Person receiving such Exchange Securities, whether or not such recipient is such Holder
itself; (ii) at the time of the commencement or consummation of the Exchange
Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person
receiving Exchange Securities from such Holder has an arrangement or
understanding with any
Person to participate in the distribution (within the meaning of the
Securities Act) of the
Exchange Securities in violation of the provisions of the Securities Act; (iii) neither the
Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange
Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if
it is an affiliate of the Company, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance with Section 6
hereof in order to have their Securities included in the Shelf Registration Statement and
benefit from the provisions regarding Additional Interest in Section 5 hereof; (iv) if such
Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such
Holder, any other Person receiving Exchange Securities from such Holder is engaging in or
intends to engage in a distribution of the Exchange Securities; and (v) if such Holder is a
Participating Broker-Dealer, such Holder has acquired the Registrable Securities for its own
account in exchange for Securities that were acquired as a result of market-making
activities or other trading activities and that it will comply with the applicable
provisions of the Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder).




Upon consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Securities that are Private Exchange Notes (and the
related Guarantees), Exchange Securities as to which Section 2(c)(iv) is applicable and
Exchange Securities held by the Market-Maker and Participating Broker-Dealers, and the
Company shall have no further obligation to register Registrable Securities (other than
Private Exchange Notes (and the related Guarantees) and Exchange Securities as to which
clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.




(b) The Company shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” which shall contain a
summary statement of the positions taken or policies made by the staff of the SEC with
respect to the potential “underwriter” status of any broker-dealer that is the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such
positions or policies have been publicly disseminated by the staff of the SEC or such
positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of
Distribution” section shall also expressly permit, to the extent permitted by applicable
policies and regulations of the SEC, the use of the Prospectus by all Participating
Broker-Dealers, and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act.




The Company and the Guarantors shall use reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to 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 is necessary to comply with applicable law in connection with
any resale of the Exchange Securities; provided, however, that such period
shall not be required to exceed 90 days, such longer period if extended pursuant to the last
paragraph of Section 6 hereof (the “Applicable Period”).


 


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If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes
acquired by them that have the status of an unsold allotment in the initial distribution,
the Company, upon the request of the Initial Purchasers, shall simultaneously with the
delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the
“Private Exchange”) for such Notes held by any such Holder, a like principal amount
of notes (the “Private Exchange Notes”) of the Company, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes except for the
placement of a restrictive legend on such Private Exchange Notes. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same
CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau.




In connection with the Exchange Offer, the Company shall:




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




(2) use their respective reasonable best efforts to keep the Exchange Offer
open for not less than 20 Business Days from the date that notice of the Exchange
Offer is mailed to Holders (or longer if required by applicable law);




(3) utilize the services of a depositary for the Exchange Offer with an address
in the Borough of Manhattan, The City of New York or in Wilmington, Delaware;




(4) 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
remains open; and




(5) otherwise comply in all material respects with all laws, rules and
regulations applicable to the Exchange Offer.




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




(1) accept for exchange all Registrable Securities validly tendered and not
validly withdrawn pursuant to the Exchange Offer and any Private Exchange;




(2) deliver to the applicable Trustee for cancellation all Registrable
Securities so accepted for exchange; and




(3) cause the applicable Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal
in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by
a depositary, authentication and delivery to such depositary of one or more
replacement Notes in global form in an equivalent principal amount thereto for the
account of such Holders in accordance with the applicable Indenture shall satisfy
such authentication and delivery requirement.


 


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




(c) The Exchange Securities and the Private Exchange Notes (and related guarantees)
shall be issued under (i) the applicable Indenture or (ii) an indenture identical in all
material respects to the applicable Indenture and which, in either case, has been qualified
under the TIA or is exempt from such qualification and shall provide that the Exchange
Securities shall not be subject to the transfer restrictions set forth in the Indentures.
The applicable Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes outstanding in any applicable Series of Notes shall
vote and consent together on all matters as one class and that none of the Exchange Notes,
the Private Exchange Notes or the Notes outstanding in the applicable Series of Notes will
have the right to vote or consent as a separate class on any matter.




(d) If, (i) because of any change in law or in currently prevailing interpretations of
the staff of the SEC, the Company is not permitted to effect the Exchange Offer, (ii) the
Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any holder of
Private Exchange Notes so requests in writing to the Company at any time within 30 days
after the consummation of the Exchange Offer, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Securities on the
date of the exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of the Company
within the meaning of the Securities Act) and so notifies the Company within 30 days after
such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to
and including (iv) of this sentence, then the Company shall promptly deliver to the
applicable Trustee (to deliver to the Holders) written notice thereof (the “Shelf
Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.


 


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3. Shelf Registration




If at any time a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:




(a) Shelf Registration. The Company shall promptly 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 Securities (the “Initial Shelf
Registration”). The Company and the Guarantors shall use reasonable best
efforts to file with the SEC the Initial Shelf Registration on or prior to the
Filing Date. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Securities for resale
by Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings).




The Company and the Guarantors shall use reasonable best efforts to cause the
Shelf Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the earliest of (i) such shorter period
ending when all Registrable Securities covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration or (ii) the date
upon which all Registrable Securities are resold to the public pursuant to Rule 144
(the “Effectiveness Period”); provided, however, that the
Company’s obligation to register the Registrable Securities will not cease because
of any provision in this clause (ii); provided, further, that the
Effectiveness Period in respect of the Initial Shelf Registration shall be extended
to the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise provided
herein. Notwithstanding anything to the contrary in this Agreement, at any time,
the Company may delay the filing of any Initial Shelf Registration Statement or
delay or suspend the effectiveness thereof, for a reasonable period of time, but not
in excess of 60 consecutive days or more than three (3) times during any calendar
year (each, a “Shelf Suspension Period”), if the Board of Directors of the
Company determines reasonably and in good faith that the filing of any such Initial
Shelf Registration Statement or the continuing effectiveness thereof would require
the disclosure of non-public material information that, in the reasonable judgment
of the Board of Directors of the Company, would be detrimental to the Company if so
disclosed or would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction or such action is required by
applicable law.




(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Securities in a Series of Notes registered
thereunder), the Company and the Guarantors shall use reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof, and
in any event shall file an additional Shelf Registration Statement pursuant to Rule
415 covering all of the Registrable Securities covered by and not sold under the
Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a
“Subsequent Shelf Registration”). If a Subsequent Shelf Registration is
filed, the Company shall use its reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the Effectiveness
Period less the aggregate number of days during which the Initial Shelf Registration
or any Subsequent Shelf Registration was previously continuously effective. As used
herein the term “Shelf Registration” means the Initial Shelf Registration
and any Subsequent Shelf Registration.


 


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(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf Registration,
if required by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable Securities (or their
counsel) covered by such Registration Statement with respect to the information
included therein with respect to one or more of such Holders, or, if reasonably
requested by any underwriter of such Registrable Securities, with respect to the
information included therein with respect to such underwriter.




4. Market-Making




(a) For the sole benefit of Goldman, Sachs & Co. (in such capacity, the
“Market-Maker”) or any of its affiliates (as defined in the rules and regulations of
the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are
outstanding and (y) it would be necessary under applicable laws, rules and regulations, in
the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to
deliver a prospectus in connection with market-making activities with respect to the
Registrable Securities or Exchange Securities and the Market-Maker or such affiliate
proposes to make a market in the Registrable Securities or Exchange Securities as part of
its business in the ordinary course, the following provisions shall apply for the sole
benefit of the Market-Maker:




(i) The Company shall file under the Securities Act one or more registration
statements, in a form approved by the Market-Maker (each such filing, a
“Market-Making Registration,” and each such registration statement, the
“Market-Making Registration Statement”). The Company and the Guarantors
agree to use reasonable best efforts to cause a Market-Making Registration Statement
with respect to the Exchange Securities (and, upon reasonable request by the
Market-Maker, the Company and the Guarantors will use commercially reasonable
efforts to have such Market-Making Registration Statement also cover the Existing
Notes) to be declared effective on or prior to (i) the date the Exchange Offer is
completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf
Registration becomes or is declared effective pursuant to Section 3 above, and, in
each case, to keep such Market-Making Registration Statement continuously effective
for so long as the Market-Maker may be required to deliver a prospectus in
connection with transactions in the Registrable Securities or the Exchange
Securities, as the case may be. In the event that the Market-Maker holds Securities
at the time the Exchange Offer is to be conducted under Section 2(a) above, the Company
agrees that the applicable Market-Making Registration shall provide for
the resale by the Market-Maker of such Registrable Securities or Exchange Securities
and shall use its reasonable best efforts to keep the Market-Making Registration
Statement continuously effective for so long as the Market-Maker may be required to
deliver a prospectus in connection with the sale of such Registrable Securities or
Exchange Securities. The Company further agrees to supplement or make amendments to
each Market-Making Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by the Company
for the applicable Market-Making Registration Statement, and the Company agrees to
furnish to the Market-Maker copies of any such supplement or amendment prior to its
being used or promptly following its filing with the SEC.


 


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(ii) Notwithstanding the foregoing, the Company may suspend the offering and
sale under a Market-Making Registration Statement for a period or periods the Board
of Directors of the Company reasonably determines to be advisable for valid business
reasons, but in any event not in excess of 60 consecutive days or more than three
(3) times during any calendar year during which such Market-Making Registration
Statement is required to be effective and usable hereunder (measured from the
Effective Time of such Market-Making Registration Statement to successive
anniversaries thereof) if (A) (i) the Board of Directors of the Company determines
in good faith that such action is in the best interests of the Company or (ii) such
Market-Making Registration Statement, prospectus or amendment or supplement thereto
contains an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (B) the Company notifies the
Market-Maker within five days before the effectiveness of such suspension.




(iii) The Company shall notify the Market-Maker (A) when any post-effective
amendment to a Market-Making Registration Statement or any amendment or supplement
to the related prospectus has been filed, and, with respect to any post-effective
amendment, when the same has become effective; (B) of any request by the SEC for any
post-effective amendment to a Market-Making Registration Statement, any supplement
or amendment to the related prospectus or for additional information; (C) the
issuance by the SEC of any stop order suspending the effectiveness of a
Market-Making Registration Statement or the initiation of any proceedings for that
purpose; (D) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities or Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceedings for
such purpose; and (E) of the happening of any event that makes any statement made in
a Market-Making Registration Statement, the related prospectus or any amendment or
supplement thereto untrue or that requires the making of any changes in a
Market-Making Registration Statement, such prospectus or any amendment or supplement
thereto, in order to make the statements therein not misleading.


 


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(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs
during the period for which the Company is required to maintain an effective
Market-Making Registration Statement, the Company shall promptly prepare and file
with the SEC a post-effective amendment to the applicable Market-Making Registration
Statement or a supplement to the related prospectus or file any other required
document so that the prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.




(v) In the event of the issuance of any stop order suspending the effectiveness
of a Market-Making Registration Statement or of any order suspending the
qualification of the Registrable Securities or Exchange Securities for sale in any
jurisdiction, the Company shall use promptly its reasonable best efforts to obtain
its withdrawal.




(vi) The Company shall furnish to the Market-Maker, in each case without charge
to the Market-Maker, at least one conformed copy of each Market-Making Registration
Statement and any post-effective amendment thereto and electronic copies of the
related prospectus and any amendment or supplement thereto.




(vii) The Company shall consent to the use of the prospectus contained in a
Market-Making Registration Statement or any amendment or supplement thereto by the
Market-Maker in connection with its market-making activities.




(viii) Notwithstanding the foregoing provisions of this Section 4, the Company
may for valid business reasons, including without limitation, a potential
acquisition, divestiture of assets or other material corporate transaction, issue a
notice that a Market-Making Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of Registrable
Securities or Exchange Securities (or Existing Notes, if applicable) and may issue
any notice suspending use of such Market-Making Registration Statement required
under applicable securities laws to be issued for so long as valid business reasons
exist and the Company shall not be obligated to amend or supplement such
Market-Making Registration Statement or the prospectus included therein until it
reasonably deems appropriate. The Market-Maker agrees that upon receipt of any
notice from the Company pursuant to this Section 4(a)(viii), it will discontinue use
of each Market-Making Registration Statement until receipt of copies of the
supplemented or amended prospectus relating thereto until advised in writing by the
Company that the use of a Market-Making Registration Statement may be resumed.




(b) In connection with a Market-Making Registration, the Company shall (i) make
reasonably available for inspection by a representative of, and counsel acting for, the
Market-Maker all relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries and (ii) use its reasonable best efforts
to have its officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative or counsel or the Market-Maker.


 


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(c) Prior to the effective date of a Market-Making Registration Statement, the Company
will use its reasonable best efforts to register or qualify such Registrable or Exchange
Securities (or Existing Notes, if applicable), as applicable, for offer and sale under the
securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Registrable Securities or Exchange Securities (or
Existing Notes, if applicable) covered by such Market-Making Registration Statement;
provided that neither the Company nor any Guarantor will be required to qualify
generally to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.




(d) The Company represents that each Market-Making Registration Statement, any
post-effective amendments thereto, any amendments or supplements to the related prospectus
and any documents filed by them under the Exchange Act will, when they become effective or
are filed with the SEC, as the case may be, conform in all respects to the requirements of
the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder
and will not, as of the effective date of such Market-Making Registration Statement or
post-effective amendments and as of the filing date of amendments or supplements to such
prospectus or filings under the Exchange Act, 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;
provided that no representation or warranty is made as to information contained in
or omitted from a Market-Making Registration Statement or the related prospectus in reliance
upon and in conformity with written information furnished to the Company by the Market-Maker
specifically for inclusion therein, which information the parties hereto agree will be
limited to the statements concerning the Market-Making activities of the Market-Maker to be
set forth on the cover page and in the “Plan of Distribution” section of the prospectus.




(e) At the time of effectiveness of a Market-Making Registration Statement (unless it
is the same as the time of effectiveness of the Exchange Offer Registration Statement) and
concurrently with each time such Market-Making Registration Statement or the related
prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if
requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a
certificate of an appropriate officer to the effect that:




(i) such Market-Making Registration Statement has been declared effective;




(ii) in the case of an amendment or supplement, such amendment has become
effective under the Securities Act as of the date and time specified in such
certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b)
under the Securities Act specified in such certificate on the date specified
therein; and


 


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(iii) as of the date of such Market-Making Registration Statement, amendment or
supplement, as applicable, such Market-Making Registration Statement and the
prospectus, as amended or supplemented, if applicable, did not include any untrue
statement of a material fact and did not omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.




(f) The Company, on the one hand, and the Market-Maker, on the other hand, hereby
agrees to indemnify each other, and, if applicable, contribute to the other, in accordance
with Section 8 of this Agreement.




(g) The Company will comply with the provisions of this Section 4 at its own expense.




(h) The agreements contained in this Section 4 and the representations, warranties and
agreements contained in this Agreement shall survive all offers and sales of the Existing
Notes, Registrable Securities or Exchange Securities and shall remain in full force and
effect, regardless of any termination or cancellation of agreements outside this Section 4
of this Agreement or any investigation made by or on behalf of any indemnified party.




(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or
“supplement” with respect to a Market-Making Registration Statement or the prospectus
contained therein shall be deemed to refer to and include the filing under the Exchange Act
of any document deemed to be incorporated therein by reference.




5. Additional Interest




(a) The Company, the Guarantors and the Initial Purchasers agree that the Holders will
suffer damages if the Company or the Guarantors fail to fulfill their respective 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, jointly and severally, as liquidated damages, additional interest on the Notes
(“Additional Interest”) if (A) the Company has neither (i) exchanged Exchange
Securities for all Securities validly tendered in accordance with the terms of the Exchange
Offer nor (ii) had a Shelf Registration Statement declared effective, in either case on or
prior to the 360th day after the Issue Date, (B) notwithstanding clause (A), the
Company is required to file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective on or prior to the 360th day after the date
such Shelf Registration Statement filing was requested or required or (C), if applicable, a
Shelf Registration has been declared effective and such Shelf Registration ceases to be
effective at any time during the Effectiveness Period (other than because of the sale of all
of the Securities registered thereunder), then Additional Interest shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum (which rate


 


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will be increased by an additional 0.25% per annum for each
subsequent 90 day period that such Additional Interest continues to accrue, provided that
the rate at which such Additional Interest accrues may in no event exceed 1.00% per annum)
(such Additional Interest to be calculated by the Company) commencing on the (x)
361st day after the Issue Date, in the case of (A) above, (y) the
361st day after the date such Shelf Registration Statement filing was requested
or required in the case of (B) above or (z) the day such Shelf Registration ceases to be
effective in the case of (C) above; provided, however, that upon the
exchange of the Exchange Securities for all Securities tendered (in the case of clause (A)
of this Section 5), upon the effectiveness of the applicable Shelf Registration Statement
(in the case of (B) of this Section 5), or upon the effectiveness of the applicable Shelf
Registration Statement which had ceased to remain effective (in the case of (C) of this
Section 5), Additional Interest on the Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue. Notwithstanding any other provisions of this Section 5, the Company shall not be
obligated to pay Additional Interest provided in Section 5(a)(B) during a Shelf Suspension
Period permitted by Section 3(a) hereof; provided, that no Additional Interest shall
accrue on the Notes following the second anniversary of the Issue Date.




(b) The Company shall notify the applicable Trustee within one business day 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
(a) of this Section 5 will be payable in cash semiannually on the payment dates stated in
the indenture applicable to such Series of Notes (to the holders of record on the record
dates stated in the indenture applicable to such Series of Notes immediately preceding such
dates), commencing with the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be determined by the Company by
multiplying the applicable Additional Interest rate by the principal amount of the
Registrable Securities, 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.




6. Registration Procedures




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




 


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(a) Prepare and file with the SEC (prior to the applicable Filing Date in the
case of a Shelf Registration), a Registration Statement or Registration Statements
as prescribed by Section 2 or 3 hereof, and use reasonable best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, however, that if (1) such filing is
pursuant
to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Securities during the Applicable Period relating thereto from whom the
Company has received prior
written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish to
and afford counsel for the Holders of the Registrable Securities covered by such
Registration Statement (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or counsel for such Participating Broker-Dealer (with respect to
any such Registration Statement), as the case may be, and counsel to the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed (in each case at least three business
days prior to such filing). The Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Securities covered by such
Registration Statement, their counsel, or the managing underwriters, if any, shall
reasonably object.




(b) Prepare and file with the SEC such amendments and post-effective amendments
to each Shelf Registration Statement or Exchange Offer Registration Statement, as
the case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period, the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the related Prospectus
to be supplemented by any Prospectus supplement required by applicable law, and as
so supplemented to be filed pursuant to Rule 424; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it 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 an Participating Broker-Dealer covered by any such
Prospectus in all material respects. The Company and the Guarantors shall be deemed
not to have used reasonable best efforts to keep a Registration Statement effective
if they voluntarily take any action that is reasonably expected to result in selling
Holders of the Registrable Securities covered thereby or Participating
Broker-Dealers seeking to sell Exchange Securities not being able to sell such
Registrable Securities or such Exchange Securities during that period unless such
action is required by applicable law or permitted by this Agreement.




 


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(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period relating thereto from whom the Company has received written notice
that it will be a Participating Broker-Dealer in the Exchange Offer, notify the
selling Holders of Registrable Securities (with respect to a Registration
Statement filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the case may be,
their counsel and the managing underwriters, if any, promptly (but in any event
within three Business Days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective amendment, when
the same has become effective under the Securities Act
(including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense of
the Company, one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Securities or resales of Exchange Securities by
Participating Broker-Dealers the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated by
Section 6(m) hereof cease to be true and correct, (iv) of the receipt by the Company
of any notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Securities
or the Exchange Securities 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, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires
the making of any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and (vi)
of the Company’s determination that a post-effective amendment to a Registration
Statement would be appropriate.




(d) Use 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 Securities or the Exchange Securities
to be sold by any Participating Broker-Dealer, for sale in any jurisdiction.


 


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(e) If a Shelf Registration is filed pursuant to Section 3 and if requested
during the Effectiveness Period by the managing underwriter or
underwriters (if any) or the Holders of a majority in aggregate principal
amount of the Registrable Securities being sold in connection with an underwritten
offering, (i) as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or counsel for either of them reasonably request
to be included therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.




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




(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, deliver to each selling Holder of Registrable Securities (with
respect to a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer (with respect to any such Registration Statement),
as the case may be, their respective counsel, and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 6, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Securities 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 Securities covered by, or the sale by Participating Broker-Dealers of
the Exchange Securities pursuant to, such Prospectus and any amendment or supplement
thereto.


 


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(h) Prior to any public offering of Registrable Securities or any delivery of a
Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, use reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or qualification)
of such Registrable Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or underwriters reasonably
request in writing; provided, however, that where Exchange
Securities held by Participating Broker-Dealers or Registrable Securities are
offered other than through an underwritten offering, the Company agrees to cause its
counsel to perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 6(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Exchange Securities held by Participating Broker-Dealers or the Registrable
Securities covered by the applicable Registration Statement; provided,
however, that the Company shall not be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in excess of a
nominal dollar amount in any such jurisdiction where it is not then so subject.




(i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate
with the selling Holders of Registrable Securities and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company; and enable such Registrable Securities to be in
such denominations (subject to applicable requirements contained in the applicable
Indenture) and registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.




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


 


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(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, upon the occurrence of any event contemplated by paragraph
6(c)(v) or 6(c)(vi) hereof, as promptly as practicable prepare and (subject to
Section 6(a) hereof) file with the SEC, at the sole expense of the Company, a
supplement or post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or any document incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder (with respect to a Registration
Statement filed pursuant to Section 3 hereof) or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer (with respect to any such Registration Statement), any such Prospectus
will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.




(l) Prior to the effective date of the first Registration Statement relating to
the Registrable Securities, (i) provide the applicable Trustee with certificates for
the Registrable Securities in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Securities.




(m) In connection with any underwritten offering of Registrable Securities
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Securities
(including, without limitation, a customary condition to the obligations of the
underwriters that the underwriters shall have received “cold comfort” letters and
updates thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants of
the Company, or of any business acquired by the Company, for which financial
statements and financial data are, or are required to be, included or incorporated
by reference in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters in connection with underwritten offerings of debt
securities similar to the Securities), and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Securities and, in such connection, (i) make such representations and warranties to,
and covenants with, the underwriters with respect to the business of the Company
(including any acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily made by
Company to underwriters in underwritten offerings of debt securities similar to the
Securities of the applicable Series of Notes, and confirm the same in


 


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writing if and
when requested; (ii) obtain the written opinions of counsel to
the Company, and written updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in opinions
reasonably requested in underwritten offerings; and (iii) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the sellers and underwriters, if any, than those set
forth in Section 8 hereof (or such other provisions and procedures reasonably
acceptable to Holders of a majority in aggregate principal amount of Registrable
Securities covered by such Registration Statement and the managing underwriter or
underwriters or agents, if any). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.




(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make available for inspection by any Initial Purchaser, any
selling Holder of such Registrable Securities being sold (with respect to a
Registration Statement filed pursuant to Section 3 hereof), or each such
Participating Broker-Dealer, as the case may be, any underwriter participating in
any such disposition of Registrable Securities, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the case may be,
or underwriter (any such Initial Purchasers, Holders, Participating Broker-Dealers,
underwriters, attorneys, accountants or agents, collectively, the
“Inspectors”), upon written request, at the offices where normally kept,
during reasonable business hours, all pertinent financial and other records,
pertinent corporate documents and instruments of the Company and subsidiaries of the
Company (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 any of its subsidiaries to
supply all information (“Information”) reasonably requested by any such
Inspector in connection with such due diligence responsibilities. Each Inspector
shall agree in writing that it will keep the Records and Information confidential,
to use the Information only for due diligence purposes, to abstain from using the
Information as the basis for any market transactions in Securities of the Company
and that it will not disclose any of the Records or Information that the Company
determines, in good faith, to be confidential and notifies the Inspectors in writing
are confidential unless (i) the disclosure of such Records or Information is
necessary to avoid or correct a misstatement or omission in such Registration
Statement or Prospectus, (ii) the release of such Records or Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such Records or Information is necessary or advisable, in the opinion
of counsel for any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon,


 


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relating to, or involving this Agreement
or the Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder, or (iv) the information in such Records or
Information has been made generally available to the public other than by an
Inspector or an “affiliate” (as defined in Rule 405) thereof; provided,
however, that prior notice shall be provided as soon as practicable to the
Company of the potential disclosure of any information by such Inspector pursuant to
clauses (i) or (ii) of this sentence to permit the Company to obtain a protective
order (or waive the provisions of this paragraph (o)) and that such Inspector shall
take such actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of the Holder or
any Inspector.




(o) Provide an indenture trustee for the Registrable Securities or the Exchange
Securities, as the case may be, and cause the Indentures or the trust indentures
provided for in Section 2(a) hereof, as the case may be, to be qualified under the
TIA not later than the effective date of the first Registration Statement relating
to the Registrable Securities; and in connection therewith, cooperate with the
trustee under any such indentures and the Holders of the Registrable Securities, to
effect such changes (if any) to such indentures as may be required for such
indentures 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.




(p) Comply in all material respects with all applicable rules and regulations
of the SEC and make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earning statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45 days after the
end of any fiscal quarter (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company, after the
effective date of a Registration Statement, which statements shall cover said
12-month periods; provided that this requirement shall be deemed satisfied
by the Company complying with Section 4.02 of each Indenture.




 


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(q) Upon consummation of the Exchange Offer or a Private Exchange, obtain an
opinion of counsel to the Company, in a form customary for underwritten
transactions, addressed to the applicable Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or the Private Exchange,
as the case may be, that the Exchange Securities or Private Exchange Notes (and the
related Guarantees), as the case may be, the related guarantee and the related
indenture constitute legal, valid and binding obligations
of the Company and the Guarantors, as applicable, enforceable against the
Company and the Guarantors, as applicable, in accordance with their respective
terms, subject to customary exceptions and qualifications. If the Exchange Offer or
a Private Exchange is to be consummated, upon delivery of the Registrable Securities
by Holders to the Company (or to such other Person as directed by the Company), in
exchange for the Exchange Securities or the Private Exchange Notes (and the related
Guarantees), as the case may be, the Company shall mark, or cause to be marked, on
such Registrable Securities that such Registrable Securities are being cancelled in
exchange for the Exchange Securities or the Private Exchange Notes (and the related
Guarantees), as the case may be; in no event shall such Registrable Securities be
marked as paid or otherwise satisfied.




(r) Use reasonable efforts to cooperate with each seller of Registrable
Securities covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the Financial
Industry Regulatory Authority Inc. (“FINRA”).




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




The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish to the Company such information regarding
such seller and the distribution of such Registrable Securities as the Company may,
from time to time, reasonably request. The Company may exclude from such
registration the Registrable Securities of any seller so long as such seller fails
to furnish such information within a reasonable time after receiving such request.
Each seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such seller not materially
misleading.




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


 


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Each Holder of Registrable Securities and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Securities or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Section 6(c)(ii), 6(c)(iv), 6(c)(v), or 6(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus or Exchange
Securities to be sold by such Holder or Participating Broker-Dealer, as the case may
be, until such Holder’s or Participating Broker-Dealer’s receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until
it is advised in writing (the “Advice”) by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company shall give any such notice, each
of the Applicable Period and the Effectiveness 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 seller of Registrable Securities covered
by such Registration Statement or Exchange Securities to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section 6(k) hereof or (y)
the Advice.




7. Registration Expenses




All fees and expenses incident to the performance of or compliance with this Agreement
by the Company or the Guarantors of their respective obligations under Sections 2, 3, 4, 6
and 9 shall be borne by the Company and the Guarantors, whether or not the Exchange Offer
Registration Statement or any Shelf Registration Statement is filed or becomes effective or
the Exchange Offer is consummated, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings required to be
made with the FINRA in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and determination of the eligibility of the
Registrable Securities or Exchange Securities for investment under the laws of such
jurisdictions in the United States (x) where the holders of Registrable Securities are
located, in the case of the Exchange Securities, or (y) as provided in Section 6(h) hereof,
in the case of Registrable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including, without
limitation, printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in aggregate
principal amount of the Registrable Securities included in any Registration Statement or in
respect of Registrable Securities or Exchange Securities to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) fees and expenses of
the applicable Trustee, any exchange agent and their counsel, (iv) fees and disbursements of
counsel for the Company and, in the case of a Shelf Registration, reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable Securities
selected by the Holder of a majority in aggregate principal amount of Registrable Securities
covered by


 


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such Shelf Registration (which counsel shall be reasonably satisfactory to the
Company) exclusive of any counsel retained pursuant to Section 8 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in Section 6(m)
hereof (including, without limitation, the expenses of any “cold comfort” letters required
by or incident to such performance), (vi) rating agency fees, if any, and any fees
associated with making the Registrable Securities or Exchange Securities eligible for
trading through The Depository Trust Company, (vii) Securities Act liability insurance, if
the Company desires such insurance, (viii) fees and expenses of all other Persons retained
by the Company, (ix) internal expenses of the Company and the Guarantors (including, without
limitation, all salaries and expenses of officers and employees of the Company and the
Guarantors performing legal or accounting duties), (x) the expense of any annual audit, (xi)
any fees and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement.




8. Indemnification and Contribution




(a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of Registrable Securities, the Market-Maker and each Participating
Broker-Dealer selling Exchange Securities during the Applicable Period, and each Person, if
any, who controls such Person or its affiliates within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act (each, a “Participant”) against any losses,
claims, damages or liabilities, joint or several, to which any Participant may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as any such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon:




(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement (or any amendment thereto), Market-Making
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus; or




(ii) the omission or alleged omission to state, in any Registration Statement
(or any amendment thereto), Market-Making Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus or
any other document or any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein not misleading,




except, in each case, insofar as such losses, claims, damages or liabilities
are arising out of or based upon any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information
relating to any Initial Purchaser, the Market-Maker or any Holder furnished
to the Company in writing through the Initial Purchasers, the Market-Maker or
any selling Holder expressly for use therein;


 


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and agree (subject to the limitations set forth in the proviso to this sentence) to
reimburse, as incurred, the Participant for any reasonable legal or other expenses incurred
by the Participant in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability or action;
provided, however, neither the Company nor the Guarantors will be liable in
any such case to the extent that any such loss, claim, damage, or liability arises out of or
is based upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Registration Statement (or any amendment thereto), Market-Making
Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information relating to any Participant furnished to the Company by
such Participant specifically for use therein. The indemnity provided for in this Section 8
will be in addition to any liability that the Company may otherwise have to the indemnified
parties. The Company and the Guarantors shall not be liable under this Section 8 to any
indemnified party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to by the Company and the Guarantors, which
consent shall not be unreasonably withheld.




(b) Each Participant, severally and not jointly, agrees to indemnify and hold harmless
the Company, the Guarantors, their respective directors (or equivalent), their respective
officers who sign any Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which the Company, the Guarantors or
any such director, officer or controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration Statement,
Market-Making Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus, or (ii) the omission or the alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written
information concerning such Participant, furnished to the Company by or on behalf of such
Participant, specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any reasonable legal or
other expenses incurred by the Company, the Guarantors or any such director, officer or
controlling person in connection with investigating or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability or action in
respect thereof. The indemnity provided for in this Section 8 will be in addition to any
liability that the Participants may


 


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otherwise
have to the indemnified parties. The Participants shall not be liable under this Section 8 to any
indemnified party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to by the Participants, which consent shall
not be unreasonably withheld. The Company and the Guarantors shall not, without the prior
written consent of such Participant, effect any settlement or compromise of any pending or
threatened proceeding in respect of which such Participant is or could have been a party, or
indemnity could have been sought hereunder by such Participant, unless such settlement (A)
includes an unconditional written release of such Participant, in form and substance
reasonably satisfactory to such Participant, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as to an admission
of fault, culpability or failure to act by or on behalf of such Participant.




(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party of the commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b) above. The
indemnifying party shall be entitled to appoint counsel (including local counsel) of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local
counsel) to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest (based on the advice of counsel to the indemnified
person); (ii) such action includes both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded (based on the advice of counsel to the
indemnified person) that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. It is


 


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understood and agreed that the indemnifying person shall not, in connection with
any proceeding or separate but related or substantially similar proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any local
counsel) representing the indemnified parties under paragraph (a) or paragraph (b) of this
Section 8, as the case may be, who are parties to such action or actions. Any such separate
firm for any Participants shall be designated in writing by Participants who sold a majority
in interest of the Registrable Securities and Exchange Securities sold by all such
Participants in the case of paragraph (a) of this Section 8 or the Company in the case of
paragraph (b) of this Section 8. In the event that any Participants are indemnified persons
collectively entitled, in connection with a proceeding or separate but related or
substantially similar proceedings in a single jurisdiction, to the payment of fees and
expenses of a single separate firm under this Section 8(c), and any such Participants cannot
agree to a mutually acceptable separate firm to act as counsel thereto, then such separate
firm for all such Indemnified Persons shall be designated in writing by Participants who
sold a majority in interest of the Registrable Securities and Exchange Securities sold by
all such Participants. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not include any
statement as to, or any admission of, fault, culpability or failure to act by or on behalf
of any indemnified party. All fees and expenses reimbursed pursuant to this paragraph (c)
shall be reimbursed as they are incurred.




(d) After notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof and approval by such indemnified party of counsel appointed
to defend such action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate counsel in
accordance with the third sentence of paragraph (c) of this Section 8 or (ii) the
indemnifying party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the indemnifying
party to such indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be unreasonably
withheld), unless such indemnified party waived in writing its rights under this Section 8,
in which case the indemnified party may effect such a settlement without such consent.


 


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(e) In circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 8 is unavailable to, or insufficient to hold harmless, an
indemnified party in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) (other than by virtue of the failure of an indemnified party to notify the
indemnifying party of its right to indemnification pursuant to paragraph (a) or (b) of
this Section 8, where such failure materially prejudices the indemnifying party (through the
forfeiture of substantial rights or defenses)), each indemnifying party, in order to provide
for just and equitable contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative benefits but
also the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company and the
Guarantors on the one hand and such Participant on the other shall be deemed to be in the
same proportion that the total net proceeds from the offering (before deducting expenses) of
the Securities received by the Company bear to the total discounts and commissions received
by such Participant in connection with the sale of the Securities (or if such Participant
did not receive discounts or commissions, the value or receiving the Securities). The
relative fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company and the
Guarantors on the one hand, or the Participants on the other, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The parties agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (e). Notwithstanding any other
provision of this paragraph (e), no Participant shall be obligated to make contributions
hereunder that in the aggregate exceed the total discounts, commissions and other
compensation or net proceeds on the sale of Securities received by such Participant in
connection with the sale of the Securities, less the aggregate amount of any damages that
such Participant has otherwise been required to pay by reason of the untrue or alleged
untrue statements or the omissions or alleged omissions to state a material fact, and no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who controls a
Participant within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Participants, and each director of the
Company and the Guarantors, each officer of the Company and the Guarantors and each person,
if any, who controls the Company and the Guarantors within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the
Company.


 


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9. Rule 144A




The Company covenants and agrees that it will use reasonable best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time the Company
is not required to file such reports, the Company will, upon the request of any Holder or
beneficial owner of Registrable Securities, make available such information necessary to
permit sales pursuant to Rule 144A. The Company further covenants and agrees, for so long
as any Registrable Securities remain outstanding that it will take such further action as
any Holder of Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule 144A unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act and reports filed
thereunder satisfy the information requirements of Rule 144A then in effect.




10. Underwritten Registrations




The Company shall not be required to assist in an underwritten offering unless
requested by the Holders of a majority in aggregate principal amount of the Registrable
Securities. If any of the Registrable Securities covered by any Shelf Registration 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 Securities included in such offering and
shall be reasonably acceptable to the Company.




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




11. Miscellaneous




(a) No Inconsistent Agreements. Neither the Company nor any Guarantor has, as
of the date hereof, and the Company and the Guarantors shall not, after the date of this
Agreement, enter into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company other issued and outstanding securities under any such
agreements. The Company and the Guarantors shall not enter into any agreement with respect
to any of its securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.


 


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




(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, otherwise than with the prior written consent of (I) the Company,
and (II) (A) the Holders of not less than a majority in aggregate principal amount of the
then outstanding Registrable Securities and (B) in circumstances that would adversely affect
the Participating Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers (and, with respect to the provisions of Section 4 hereof, the written consent
of the Market-Maker); provided, however, that Section 8 and this Section
11(c) may not be amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Securities or Exchange Securities, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such amendment,
modification or supplement. 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 Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Securities may be given by Holders of
at least a majority in aggregate principal amount of the Registrable Securities being sold
pursuant to such Registration Statement.




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




(i) if to a Holder of the Registrable Securities, any Participating
Broker-Dealer or the Market-Maker, at the most current address of such Holder,
Participating Broker-Dealer or the Market-Maker, as the case may be, set forth on
the records of the registrar under the applicable Indenture, with a copy in like
manner to the Initial Purchasers as follows:




J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

Attention: Rajesh Kapadia




and


 


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Goldman, Sachs & Co.

200 West Street

New York, New York 10282

Attention: Registration Department




with a copy to:




Cahill Gordon & Reindel llp

80 Pine Street

New York, New York 10005

Facsimile No.: (212) 269-5420

Attention: Daniel Zubkoff, Esq. and Douglas Horowitz, Esq.




(ii) if to the Initial Purchasers, at the address specified in Section
11(d)(i);




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




SunGard Data Systems Inc.

680 East Swedesford Road

Wayne, Pennsylvania 19087

Facsimile No.: (610) 687-3725

Attention: General Counsel




with a copy to:




Simpson Thacher & Bartlett LLP

425 Lexington Ave.

New York, New York 10017

Facsimile No.: (212) 455-2502

Attention: Richard A. Fenyes, Esq.




All such notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; one Business Day after being timely delivered to a
next-day air courier; and upon written confirmation, if sent by facsimile.




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




(e) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties hereto, the Holders and
the Participating Broker-Dealers; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indentures.


 


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(f) 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.




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




(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HEREBY WAIVE ANY RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.




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




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




(k) Third-Party Beneficiaries. Holders of Registrable Securities and
Participating Broker-Dealers are intended third-party beneficiaries of this Agreement, and
this Agreement may be enforced by such Persons.




(l) Entire Agreement. This Agreement, together with the Purchase Agreement and
the Indentures, is intended by the parties as a final and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements, representations, or
warranties, contracts, understandings, correspondence, conversations and memoranda between
the Holders on the one hand and the Company 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.


 


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



	 	 	 	 	 	 	 
	 	 	SUNGARD DATA SYSTEMS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Erik G. Erickson	 	 
	 

	 	 	 	Title:   Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ADVANCED PORTFOLIO TECHNOLOGIES, INC.

AUTOMATED SECURITIES CLEARANCE LLC

EXETER EDUCATIONAL MANAGEMENT SYSTEMS, INC.

GL TRADE OVERSEAS, INC.

INFLOW LLC

ONLINE SECURITIES PROCESSING INC.

SIS EUROPE HOLDINGS LLC

SRS DEVELOPMENT INC.

SUNGARD AMBIT LLC

SUNGARD ASIA PACIFIC INC.

SUNGARD AVAILABILITY SERVICES LP

SUNGARD AVAILABILITY SERVICES LTD.

SUNGARD AVANTGARD LLC

SUNGARD BUSINESS SYSTEMS LLC

SUNGARD COMPUTER SERVICES LLC

SUNGARD CONSULTING SERVICES LLC

SUNGARD CSA LLC

SUNGARD DEVELOPMENT CORPORATION

SUNGARD DIS INC.

SUNGARD ENERGY SYSTEMS INC.

SUNGARD EPROCESS INTELLIGENCE LLC

SUNGARD FINANCIAL SYSTEMS LLC

SUNGARD HIGHER EDUCATION INC.

SUNGARD HIGHER EDUCATION MANAGED SERVICES INC.

SUNGARD INVESTMENT SYSTEMS LLC

SUNGARD INVESTMENT VENTURES LLC

SUNGARD IWORKS LLC

SUNGARD IWORKS P&C (US) INC.

SUNGARD KIODEX LLC

SUNGARD NETWORK SOLUTIONS INC.

SUNGARD PUBLIC SECTOR INC.

SUNGARD REFERENCE DATA SOLUTIONS LLC

SUNGARD SAS HOLDINGS INC.

SUNGARD SECURITIES FINANCE LLC	 	 





Signature Page to Registration Rights Agreement



 


 









 





	 	 	 	 	 	 	 
	 	 	SUNGARD SECURITIES FINANCE INTERNATIONAL LLC

SUNGARD SHAREHOLDER SYSTEMS LLC

SUNGARD SOFTWARE, INC.

SUNGARD SYSTEMS INTERNATIONAL INC.

SUNGARD TECHNOLOGY SERVICES LLC

SUNGARD VERICENTER, INC.

SUNGARD VPM INC.

SUNGARD WORKFLOW SOLUTIONS LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Eric G. Erickson	 	 
	 

	 	 	 	Title:   Vice President & Assistant Secretary	 	 






Signature Page to Registration Rights Agreement




 


 









 







The foregoing Agreement is hereby confirmed and accepted as of the date first above written.



J.P. MORGAN SECURITIES LLC

As Representative of the several Initial Purchasers.



	 	 	 	 	 
	By:

	 	 
 

Name:
	 	 
	 

	 	Title:	 	 






GOLDMAN, SACHS & CO.

As Representative of the several Initial Purchasers.



	 	 	 	 	 
	By:

	 	 
 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to Registration Rights Agreement





 


 









 







SCHEDULE I




THE GUARANTORS




ADVANCED PORTFOLIO TECHNOLOGIES, INC.

AUTOMATED SECURITIES CLEARANCE LLC

EXETER EDUCATIONAL MANAGEMENT SYSTEMS, INC.

GL TRADE OVERSEAS, INC.

INFLOW LLC

ONLINE SECURITIES PROCESSING INC.

SIS EUROPE HOLDINGS LLC

SRS DEVELOPMENT INC.

SUNGARD AMBIT LLC

SUNGARD ASIA PACIFIC INC.

SUNGARD AVAILABILITY SERVICES LP

SUNGARD AVAILABILITY SERVICES LTD.

SUNGARD AVANTGARD LLC

SUNGARD BUSINESS SYSTEMS LLC

SUNGARD COMPUTER SERVICES LLC

SUNGARD CONSULTING SERVICES LLC

SUNGARD CSA LLC

SUNGARD DEVELOPMENT CORPORATION

SUNGARD DIS INC.

SUNGARD ENERGY SYSTEMS INC.

SUNGARD EPROCESS INTELLIGENCE LLC

SUNGARD FINANCIAL SYSTEMS LLC

SUNGARD HIGHER EDUCATION INC.

SUNGARD HIGHER EDUCATION MANAGED SERVICES INC.

SUNGARD INVESTMENT SYSTEMS LLC

SUNGARD INVESTMENT VENTURES LLC

SUNGARD IWORKS LLC

SUNGARD IWORKS P&C (US) INC.

SUNGARD KIODEX LLC

SUNGARD NETWORK SOLUTIONS INC.

SUNGARD PUBLIC SECTOR INC.

SUNGARD REFERENCE DATA SOLUTIONS LLC

SUNGARD SAS HOLDINGS INC.

SUNGARD SECURITIES FINANCE LLC

SUNGARD SECURITIES FINANCE INTERNATIONAL LLC

SUNGARD SHAREHOLDER SYSTEMS LLC

SUNGARD SOFTWARE, INC.

SUNGARD SYSTEMS INTERNATIONAL INC.

SUNGARD TECHNOLOGY SERVICES LLC

SUNGARD VERICENTER, INC.

SUNGARD VPM INC.

SUNGARD WORKFLOW SOLUTIONS LLC