exv10w1



 





Exhibit 10.1




Execution
copy




 






Registration Rights Agreement




Dated as of April 9, 2007




among




Service Corporation International




and




Merrill Lynch, Pierce, Fenner & Smith

Incorporated,




Banc of America Securities LLC

J.P. Morgan Securities Inc.

Lehman Brothers Inc.

and

Raymond James & Associates, Inc.




 






 









 





REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (the “Agreement”) is made and entered into this 9th
day of April, 2007, among Service Corporation International, a Texas corporation (the
“Company”), and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”), J.P. Morgan Securities Inc., Banc of America Securities LLC, Lehman Brothers Inc. and
Raymond James & Associates, Inc. (collectively, the “Initial Purchasers”).



     This Agreement is made pursuant to the Purchase Agreement, dated March 28, 2007, among the
Company and the Initial Purchasers (the “Purchase Agreement”), which provides for the sale
by the Company to the Initial Purchasers of an aggregate of $200 million principal amount of the
Company’s 6.75% Senior Notes due 2015 (the “Securities”). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under the Purchase
Agreement.



     In consideration of the foregoing, the parties hereto agree as follows:



     1. Definitions.



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



     “1933 Act” shall mean the Securities Act of 1933, as amended from time to time.



     “1934 Act” shall mean the Securities Exchange Act of l934, as amended from time to
time.



     “Closing Date” shall mean the Closing Time as defined in the Purchase Agreement.



     “Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.



     “Depositary” shall mean The Bank of New York Trust Company, N.A., or any other
depositary appointed by the Company.



     “DTC” shall mean The Depository Trust Company.



     “Exchange Offer” shall mean the exchange offer by the Company of Exchange Securities
for Registrable Securities pursuant to Section 2.1 hereof.



     “Exchange Offer Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2.1 hereof.



     “Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form), and all amendments and



 









 




supplements to such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.




     “Exchange Period” shall have the meaning set forth in Section 2.1 hereof.



     “Exchange Securities” shall mean the 6.75% Senior Notes due 2015, issued by the
Company under the Indenture containing terms identical to the Securities in all material respects
(except for references to certain interest rate provisions, restrictions on transfers and
restrictive legends), to be offered to Holders of Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.



     “Holder” shall mean an Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities.



     “Indenture” shall mean the Indenture relating to the Securities, dated as of February
1, 1993, between the Company and The Bank of New York Trust Company, N.A., as trustee, as the same
may be amended, supplemented, waived or otherwise modified from time to time in accordance with the
terms thereof.



     “Initial Purchaser” or “Initial Purchasers” shall have the meaning set forth
in the preamble.



     “Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of Outstanding (as defined in the Indenture) Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on the Securities or any
Affiliate (as defined in the Indenture) of the Company shall be disregarded in determining whether
such consent or approval was given by the Holders of such required percentage amount.



     “Merrill Lynch” shall have the meaning set forth in the preamble.



     “Participating Broker-Dealer” shall mean any of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Banc of America Securities LLC, J.P. Morgan Securities Inc., Lehman Brothers Inc. and
Raymond James & Associates, Inc. and any other broker-dealer which makes a market in the Securities
and exchanges Registrable Securities in the Exchange Offer for Exchange Securities.



     “Person” shall mean an individual, partnership (general or limited), corporation,
limited liability company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.



     “Private Exchange” shall have the meaning set forth in Section 2.1 hereof.



2









 





     “Private Exchange Securities” shall have the meaning set forth in Section 2.1 hereof.



     “Prospectus” shall mean the prospectus included in a Registration Statement, including
any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.



     “Purchase Agreement” shall have the meaning set forth in the preamble.



     “Registrable Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided, however, that Securities and, if issued, the Private Exchange
Securities, shall cease to be Registrable Securities when (i) a Registration Statement with respect
to such Securities shall have been declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii) such Securities have been sold
to the public pursuant to Rule l44 (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (iii) such Securities shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Securities purchased from the Company and continued to
be held by the Initial Purchasers).



     “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the “NASD”) registration and
filing fees, including, if applicable, the fees and expenses of any “qualified independent
underwriter” (and its counsel) that is required to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of counsel for any underwriters
or Holders in connection with blue sky qualification of any of the Exchange Securities or
Registrable Securities and any filings with the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of and compliance with
this Agreement, (iv) all fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges, (v) all rating agency fees,
(vi) the fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or “cold comfort” letters
required by or incident to such performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable fees and expenses of
counsel to the Initial Purchasers in connection therewith and (ix) any fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers of securities and the fees
and expenses of any special
experts retained by the Company in connection with any Registration Statement, but excluding



3









 




underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.




     “Registration Statement” shall mean any registration statement of the Company which
covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.



     “SEC” shall mean the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United States Securities and
Exchange Commission.



     “Shelf Registration” shall mean a registration effected pursuant to Section 2.2
hereof.



     “Shelf Registration Statement” shall mean a “shelf” registration statement of the
Company pursuant to the provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities or all of the Private Exchange Securities on an appropriate form under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.



     “Trustee” shall mean the trustee with respect to the Securities under the Indenture.



     2. Registration Under the 1933 Act.



          2.1 Exchange Offer. The Company shall, for the benefit of the Holders, at the
Company’s cost, (A) prepare and, as soon as practicable but not later than 90 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities (other than Private Exchange Securities), of a
like principal amount of Exchange Securities, (B) use its best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act within 180 days of the Closing
Date, (C) use its best efforts to keep the Exchange Offer Registration Statement effective until
the closing of the Exchange Offer and (D) use its best efforts to cause the Exchange Offer to be
consummated not later than 210 days following the Closing Date. The Exchange Securities will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of
Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired the Exchange Securities in the ordinary
course of such Holder’s business and (d) has no arrangements or understandings with any Person to
participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange Securities from and

4









 








after their receipt without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.




     In connection with the Exchange Offer, the Company shall:



          (a) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and
related documents;




          (b) keep the Exchange Offer open for acceptance for a period of not less than 20 business days
after the date notice thereof is mailed to the Holders (or longer if required by applicable law)
(such period referred to herein as the “Exchange Period”);




          (c) utilize the services of the Depositary for the Exchange Offer;




          (d) permit Holders to withdraw tendered Registrable Securities at any time prior to 5:00 p.m.
(Eastern Time), on the last business day of the Exchange Period, by sending to the Depositary, a
telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange, and a statement that such Holder
is withdrawing such Holder’s election to have such Securities exchanged;




          (e) notify each Holder that any Registrable Security not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this Agreement (except in the
case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and




          (f) otherwise comply in all respects with all applicable laws relating to the Exchange Offer.




     If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them and having the status of an unsold allotment in the initial distribution, the
Company upon the request of any Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange
(the “Private Exchange”) for the Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Company on a senior basis, that are identical (except
that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the
“Private Exchange Securities”).



     The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (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 Indenture but that the Private
Exchange Securities shall be subject to such transfer restrictions. The Indenture or such
indenture shall provide that the Exchange Securities, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and that none of the
Exchange Securities,
the Private Exchange Securities or the Securities will have the right to vote or consent as a



5









 




separate class on any matter. The Private Exchange Securities shall be of the same series as and
the Company shall use all commercially reasonable efforts to have the Private Exchange Securities
bear the same CUSIP number as the Exchange Securities. The Company shall not have any liability
under this Agreement solely as a result of such Private Exchange Securities not bearing the same
CUSIP number as the Exchange Securities.




     As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as
the case may be, the Company shall:




     (i) accept for exchange all Registrable Securities duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which shall be an exhibit thereto;




     (ii) accept for exchange all Securities properly tendered pursuant to the Private
Exchange;




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




     (iv) cause the Trustee promptly to authenticate and deliver Exchange Securities or
Private Exchange Securities, as the case may be, to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.



     Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor or,
if no interest has been paid on the Registrable Securities, from the date of original issuance.
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i)
that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange,
(iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have
represented that all Exchange Securities to be received by it shall be acquired in the ordinary
course of its business and that at the time of the consummation of the Exchange Offer it shall have
no arrangement or understanding with any person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Securities and shall have made such other representations
as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or other appropriate form under the 1933 Act available and (iv) that no action
or proceeding shall have been instituted or threatened in any court or by or before any
governmental agency with respect to the Exchange Offer or the Private Exchange which, in the
Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed
with the Exchange Offer or the Private Exchange. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such
Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.



6









 





          2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason the Exchange Offer Registration Statement is not declared effective within 180 days
following the original issue of the Registrable Securities or the Exchange Offer is not consummated
within 210 days after the original issue of the Registrable Securities, (iii) upon the request of
any of the Initial Purchasers or (iv) if a Holder is not permitted to participate in the Exchange
Offer or does not receive fully tradeable Exchange Securities pursuant to the Exchange Offer, then
in case of each of clauses (i) through (iv) the Company shall, at its cost:




          (a) As promptly as practicable, file with the SEC, and thereafter shall use its best efforts
to cause to be declared effective as promptly as practicable but no later than 210 days after the
original issue of the Registrable Securities, a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders from time to time in accordance with the
methods of distribution elected by the Majority Holders participating in the Shelf Registration and
set forth in such Shelf Registration Statement.




          (b) Use its best efforts to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective by the SEC, or for such
shorter period that will terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the “Effectiveness Period”);
provided, however, that the Effectiveness Period in respect of the Shelf Registration Statement
shall be extended to the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the 1933 Act and as otherwise provided herein.




          (c) Notwithstanding any other provisions hereof, use its best efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus forming part thereof and
any supplement thereto complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, 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 not
misleading and (iii) any Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to time), does not include an
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not misleading.




          The Company shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration Statement. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and to
furnish to the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.




7









 








          2.3 Expenses. The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.




          2.4 Effectiveness. (a) The Company will be deemed not have used its best efforts to
cause the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the Company voluntarily
takes any action that would, or omits to take any action which omission would, result in any such
Registration Statement not being declared effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such Registrable Securities during
that period as and to the extent contemplated hereby, unless such action is required by applicable
law.




          (b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such Registration Statement
may legally resume.




          2.5 Interest. The Securities will provide that in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 180th calendar day
following the date of original issue of the Securities or (c) the Exchange Offer is not consummated
or a Shelf Registration Statement is not declared effective, in either case, on or prior to the
210th calendar day following the date of original issue of the Securities (each such event referred
to in clauses (a) through (c) above, a “Registration Default”), the interest rate borne by
the Securities shall be increased (“Additional Interest”) by one-quarter of one percent
(0.25%) per annum upon the occurrence of each Registration Default, which rate will increase by one
quarter of one percent (0.25%) each 90-day period that such Additional Interest continues to accrue
under any such circumstance, provided that the maximum aggregate increase in the interest rate will
in no event exceed one percent (1.0%) per annum. Upon the cure of all Registration Defaults the
accrual of Additional Interest will cease and the interest rate will revert to the original rate.




          If the Shelf Registration Statement is unusable by the Holders for any reason, and the
aggregate number of days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the interest rate
borne by the Securities will be increased by one-quarter of one percent (0.25%) per annum of
the principal amount of the Securities for the first 90-day period (or portion thereof) beginning
on the 31st such date that such Shelf Registration Statement ceases to be usable, which
rate shall be

8









 








increased by an additional one-quarter of one percent (0.25%) per annum of the
principal amount of the Securities at the beginning of each subsequent 90-day period, provided that
the maximum aggregate increase in the interest rate will in no event exceed one percent (1.0%) per
annum. Any amounts payable under this paragraph shall also be deemed “Additional Interest” for
purposes of this Agreement. Upon the Shelf Registration Statement once again becoming usable, the
interest rate borne by the Securities will be reduced to the original interest rate if the Company
is otherwise in compliance with this Agreement at such time. Additional Interest shall be computed
based on the actual number of days elapsed in each 90-day period in which the Shelf Registration
Statement is unusable.




          The Company shall notify the Trustee within three business days after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the Additional Interest then
due. The Additional Interest due shall be payable on each interest payment date to the record
Holder of Securities entitled to receive the interest payment to be paid on such date as set forth
in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.




     3. Registration Procedures.



          In connection with the obligations of the Company with respect to Registration Statements
pursuant to Sections 2.1 and 2.2 hereof, the Company shall:




          (a) prepare and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf Registration, be available for the sale
of the Registrable Securities by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;




          (b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or methods of distribution
by the selling Holders thereof (including sales by any Participating Broker-Dealer);




          (c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities, at
least five business days prior to filing, that a Shelf Registration Statement with

9









 








respect to the
Registrable Securities is being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of Registrable Securities and
to each underwriter of an underwritten offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so requests, all exhibits in order
to facilitate the public sale or other disposition of the Registrable Securities; and (iii) hereby
consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto;




          (d) use its best efforts to register or qualify the Registrable Securities under all
applicable state securities or “blue sky” laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable Registration Statement
is declared effective by the SEC, and do any and all other acts and things which may be reasonably
necessary or advisable to enable each such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that
the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (ii) take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;




          (e) notify promptly each Holder of Registrable Securities under a Shelf Registration or any
Participating Broker-Dealer who has notified the Company that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective, (iii) of the issuance
by the SEC or any state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading, (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation or threatening of
any

10









 








proceeding for such purpose and (vii) of any determination by the Company that a post-effective
amendment to such Registration Statement would be appropriate;




          (f) in the case of the Exchange Offer Registration Statement (i) include in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution” which section shall be reasonably
acceptable to Merrill Lynch on behalf of the Participating Broker-Dealers, and 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 holds Registrable Securities acquired
for its own account as a result of market-making activities or other trading activities and that
will be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of Merrill Lynch on behalf of the Participating Broker-Dealers and its
counsel, represent the prevailing views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange Securities, (ii)
furnish to each Participating Broker-Dealer who has delivered to the Company the notice referred to
in Section 3(e), without charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request, (iii) hereby consent to the
use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or transfer of the Exchange
Securities covered by the Prospectus or any amendment or supplement thereto, and (iv) include in
the transmittal letter or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:





“If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of Exchange
Securities received in respect of such Registrable Securities pursuant to
the Exchange Offer;” and


(y) a statement to the effect that by a broker-dealer making the acknowledgment described in clause
(x) and by delivering a Prospectus in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the 1933
Act;




          (g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers and (ii)
in the case of a Shelf Registration, furnish counsel for the Holders of Registrable Securities
copies of any comment letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement and Prospectus or
for additional information;




11









 








          (h) make every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;




          (i) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, and
each underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto, unless requested);




          (j) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale of Registrable
Securities;




          (k) in the case of a Shelf Registration, upon the occurrence of any event or the discovery of
any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as practicable
after the occurrence of such an event, use its best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or 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 or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so qualified. At such time
as such public disclosure is otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder of such determination and to
furnish each Holder such number of copies of the Prospectus as amended or supplemented, as such
Holder may reasonably request;




          (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a Registration Statement, provide
copies of such document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Company as shall be reasonably requested by the Holders of Registrable
Securities, or the Initial Purchasers on behalf of such Holders, available for discussion of such
document;




          (m) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange Securities, Private Exchange
Securities or the Registrable Securities, as the case may be, in a form eligible for deposit with
DTC;




12









 








          (n) (i) cause the Indenture to be qualified under the TIA in connection with the registration
of the Exchange Securities or Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and (iii) execute, and use its
best efforts to cause the 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 the
Indenture to be so qualified in a timely manner;




          (o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration is an underwritten
registration:




               (i) make such representations and warranties to the Holders of such Registrable Securities
and the underwriters, if any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably requested by them;



               (ii) enter into a securities sales agreement with the Holders and an agent of the Holders
providing for, among other things, the appointment of such agent for the selling Holders for the
purpose of soliciting purchases of Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;



               (iii) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to said Section or, at the request of any underwriters, in
the form customarily provided to such underwriters in similar types of transactions; and



               (iv) deliver such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if any.


The above shall be done at (x) the effectiveness of such Registration Statement (and each
post-effective amendment thereto) and (y) each closing under any underwriting or similar agreement
as and to the extent required thereunder;




          (p) in the case of a Shelf Registration or if a Prospectus is required to be delivered by any
Participating Broker-Dealer in the case of an Exchange Offer, make available
for inspection by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any of the foregoing, all
financial and other records, pertinent corporate documents and properties of the Company reasonably
requested by any such persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a Registration

13









 








Statement, and make such representatives of the Company available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers;




          (q) (i) in the case of an Exchange Offer Registration Statement, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to Merrill Lynch, on behalf of the Participating
Broker-Dealers, and to its counsel, Vinson & Elkins L.L.P., and make such changes in any such
document prior to the filing thereof as Merrill Lynch or its counsel may reasonably request and,
except as otherwise required by applicable law, not file any such document in a form to which
Merrill Lynch and its counsel shall not have previously been advised and furnished a copy of or to
which Merrill Lynch or its counsel shall reasonably object, and make the representatives of the
Company available for discussion of such documents as shall be reasonably requested by Merrill
Lynch; and




               (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Securities, to the Initial Purchasers, to counsel for the
Holders and to the underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior to the filing thereof as the
Initial Purchasers, the counsel to the Holders or the underwriter or underwriters reasonably
request and not file any such document in a form to which the Majority Holders, the Initial
Purchasers on behalf of the Holders of Registrable Securities, counsel for the Holders of
Registrable Securities or any underwriter shall not have previously been advised and furnished a
copy of or to which the Majority Holders, the Initial Purchasers of behalf of the Holders of
Registrable Securities, counsel to the Holders of Registrable Securities or any underwriter shall
reasonably object, and make the representatives of the Company available for discussion of such
document as shall be reasonably requested by the Holders of Registrable Securities, the Initial
Purchasers on behalf of such Holders, counsel for the Holders of Registrable Securities or any
underwriter;



          (r) in the case of a Shelf Registration, use its best efforts to cause all Registrable
Securities to be listed on any securities exchange on which similar debt securities issued by the
Company are then listed if requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;




          (s) in the case of a Shelf Registration, use its best efforts to cause the Registrable
Securities to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;




          (t) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at least
12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;




14









 








          (u) cooperate and assist in any filings required to be made with the NASD and, in the case of
a Shelf Registration, in the performance of any due diligence investigation by any underwriter and
its counsel (including any “qualified independent underwriter” that is required to be retained in
accordance with the rules and regulations of the NASD); and




          (v) upon consummation of an Exchange Offer or a Private Exchange, obtain a customary opinion
of counsel to the Company addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or Private Exchange, and which includes an opinion
that (i) the Company has duly authorized, executed and delivered the Exchange Securities and/or
Private Exchange Securities, as applicable, and the related indenture, and (ii) each of the
Exchange Securities and related indenture constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its respective terms (with customary
exceptions).




          In the case of a Shelf Registration Statement, the Company may (as a condition to such
Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time reasonably request in
writing.




          In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if so
directed by the Company, such Holder will deliver to the Company (at its expense) all copies in
such Holder’s possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Securities current at the time of receipt of such notice.




          In the event that the Company fails to effect the Exchange Offer or file any Shelf
Registration Statement and maintain the effectiveness of any Shelf Registration Statement as
provided herein, the Company shall not file any Registration Statement with respect to any
securities (within the meaning of Section 2(1) of the 1933 Act) of the Company other than
Registrable Securities.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or
managers that will manage such offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be 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.




15









 








     4. Indemnification; Contribution.



          (a) The Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder,
each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person
being an “Underwriter”) and each Person, if any, who controls any Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:




               (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act, including all documents
incorporated therein by reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;



               (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 4(d) below) any such settlement is effected with the written
consent of the Company; and



               (iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information
furnished to the Company by the Holder or Underwriter expressly for use in a Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company,
the Initial Purchasers, each Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who controls the Company, the Initial
Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as

16









 








incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with written information with
respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.




          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying party or parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.




          (d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such settlement.




          (e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the

17









 








relative fault
of the Company on the one hand and the Holders and the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.




          The relative fault of the Company on the one hand and the Holders and the Initial Purchasers
on the other hand shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.




          The Company, the Holders and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.




          Notwithstanding the provisions of this Section 4, no Holder shall be required to contribute
any amount in excess of the amount by which the total price at which the Securities sold by it were
offered exceeds the amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




          For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as such Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Securities set forth opposite their respective
names in Schedule A to the Purchase Agreement and not joint.




     5. Miscellaneous.



          5.1 Rule 144 and Rule 144A. For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file the
reports required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the

18









 








1934 Act
and the rules and regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such information to a prospective purchaser as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will take such further
action as any Holder of Registrable Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent required from time to
time to enable such Holder to sell its Registrable Securities without registration under the 1933
Act within the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as such
Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.




          5.2 No Inconsistent Agreements. The Company has not entered into and the Company will
not after the date of this Agreement enter into any agreement which 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 and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the Company’s other
issued and outstanding securities under any such agreements.




          5.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or departure.




          5.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (b) if to the Company, initially at the
Company’s address set forth in the Purchase Agreement, and thereafter at such other address of
which notice is given in accordance with the provisions of this Section 5.4.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.




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




19









 








          5.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided 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 Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.




          5.6 Third Party Beneficiaries. The Initial Purchasers (even if the Initial Purchasers
are not Holders of Registrable Securities) shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Holders, on the other hand, and shall
have the right to enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders hereunder. Each Holder of
Registrable Securities shall be a third party beneficiary to the agreements made hereunder between
the Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.




          5.7 Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Sections 2.1 through 2.4 hereof may result in material irreparable injury to
the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it would
not be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s obligations under Sections 2.1 through 2.4 hereof.




          5.8 Restriction on Resales. Until the expiration of two years after the original
issuance of the Securities and the Guarantees, the Company and the Guarantor will not, and will
cause their “affiliates” (as such term is defined in Rule 144(a)(1) under the 1933 Act) not to,
resell any Securities and Guarantees which are “restricted securities” (as such term is defined
under Rule 144(a)(3) under the 1933 Act) that have been reacquired by any of them and shall
immediately upon any purchase of any such Securities and Guarantees submit such Securities and
Guarantees to the Trustee for cancellation.




          5.9 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.




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

20









 









          5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.




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




21









 








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



	 	 	 	 	 	 	 
	 	 	SERVICE CORPORATION INTERNATIONAL	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Harris E. Loring,
III 
	 	 
	 

	 	Name:
	 	Harris E. Loring, III 
	 	 
	 

	 	Title:	 	Vice President and Treasurer 	 	 






Confirmed and accepted as

of the date first above

written:


MERRILL LYNCH, PIERCE, FENNER & SMITH

                    INCORPORATED




BANC OF AMERICA SECURITIES LLC

J.P. MORGAN SECURITIES INC.

LEHMAN BROTHERS INC.

RAYMOND JAMES & ASSOCIATES, INC.




BY: MERRILL LYNCH, PIERCE, FENNER & SMITH

                     INCORPORATED




	 	 	 	 	 
	By:
	 	/s/ Michael
Aaronson 

	 	 
	Name:

	 	Michael Aaronson	 	 
	Title:
	 	Director 	 	 






[Signature
Page to Registration Rights Agreement]