Registration Rights Agreement – First Data Corp.
First Data Corporation
Senior Cash Pay Notes due 2015
Senior PIK Notes due 2015
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by the
Guarantors
Registration Rights Agreement
September 24, 2008
Citibank, N.A.,
As Administrative Agent for the Lenders
referred to below
c/o Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
First Data Corporation, a Delaware Corporation (the
“Company“), proposes to issue upon the terms set forth
in the Loan Agreement (as defined herein) to the Lenders (as defined in the Loan
Agreement) its Senior Cash Pay Notes due 2015 (the “Senior Cash Pay
Notes“) and its Senior PIK Notes due 2015 (the
“Senior PIK Notes” and, together with the Senior Cash
Pay Notes, the “Senior Notes“), in each case upon
exchange of a like aggregate principal amount of Loans (as defined in the Loan
Agreement) for such Senior Notes pursuant to Section 2.14(b) of the Loan
Agreement. The Senior Notes will be unconditionally guaranteed by the Guarantors
(as defined herein). In satisfaction of a condition to the exchange of Loans for
the Senior Notes, the Company and the Guarantors agree with the Administrative
Agent (as defined herein) for the benefit of the Lenders and the other holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement (this “Agreement“), the
following terms shall have the following respective meanings:
“Additional Interest” shall have the meaning
assigned thereto in Section 2(d).
“Administrative Agent” shall mean Citibank, N.A.,
as administrative agent for the Lenders under the Loan Agreement.
“Base Interest” shall mean the interest that would
otherwise accrue on the Securities under the terms thereof and the Senior
Indenture, without giving effect to the provisions of this Agreement.
The term “broker-dealer” shall mean any broker or
dealer registered with the Commission under the Exchange Act.
“Business Day” shall have the meaning set forth in
Rule 13e-4(a)(3) promulgated by the Commission under the Exchange Act, as the
same may be amended or succeeded from time to time.
“Commission” shall mean the United States
Securities and Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“Company” shall have the meaning set forth in the
preamble hereto.
“EDGAR System” means the EDGAR filing system of the
Commission and the rules and regulations pertaining thereto promulgated by the
Commission in Regulation S-T under the Securities Act and the Exchange Act, in
each case as the same may be amended or succeeded from time to time (and without
regard to format).
“Effective Time,” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the Commission
declares the Exchange Registration Statement effective or as of which the
Exchange Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares
the Shelf Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
“Electing Holder” shall mean any holder of
Registrable Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or Section
3(d)(iii) and the instructions set forth in the Notice and Questionnaire.
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated by the
Commission thereunder, as the same may be amended or succeeded from time to
time.
“Exchange Date” shall mean the first date on which
any Securities are issued.
“Exchange Offer” shall have the meaning assigned
thereto in Section 2(b).
“Exchange Registration” shall have the meaning
assigned thereto in Section 3(c).
“Exchange Registration Statement” shall have the
meaning assigned thereto in Section 2(b).
“Exchange Securities” shall have the meaning
assigned thereto in Section 2(b).
“Guarantors” shall have the meaning assigned
thereto in the Senior Indenture.
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The term “holder” shall mean each of the Lenders
and other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as such person
owns any Registrable Securities.
“Lenders” means the Lenders (as defined in the Loan
Agreement) that may acquire Registrable Securities upon exchange of their Loans
(as defined in the Loan Agreement) as described in the initial paragraph hereof.
“Loan Agreement” shall mean the Senior Unsecured
Interim Loan Agreement, dated as of September 24, 2007, (as amended and restated
as of October 24, 2007, the “Amended Senior Unsecured Interim Loan Agreement”),
as amended by the First Amendment to the Amended Senior Unsecured Interim Loan
Agreement, dated as of June 19, 2008, among the Company, the Lenders party
thereto, the Administrative Agent and the other agents party thereto.
“Material Adverse Effect” shall have the meaning
set forth in Section 5(c).
“Notice and Questionnaire” means a Notice of
Registration Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
“Participating Broker-Dealer” means a broker-dealer
that receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities.
The term “person” shall mean a corporation, limited
liability company, association, partnership, organization, business, individual,
government or political subdivision thereof or governmental agency.
“Registrable Securities” shall mean the Securities;
provided, however, that a Security shall cease to be a Registrable
Security upon the earliest to occur of the following: (i) in the circumstances
contemplated by Section 2(b), the Security has been exchanged for an Exchange
Security in an Exchange Offer as contemplated in Section 2(b) (provided
that any Exchange Security that, pursuant to the last two sentences of Section
2(b), is included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with respect to
Sections 5 and 6 until resale of such Registrable Security has been effected
within the 90-day period referred to in Section 2(b)); (ii) in the circumstances
contemplated by Section 2(a) or Section 2(c), as applicable, a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or pursuant to the Senior Indenture; (iv) such Security is eligible
to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security shall
cease to be outstanding.
“Registration Default” shall have the meaning
assigned thereto in Section 2(d).
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“Registration Default Period” shall have the
meaning assigned thereto in Section 2(d).
“Registration Expenses” shall have the meaning
assigned thereto in Section 4.
“Resale Period” shall have the meaning assigned
thereto in Section 2(b).
“Restricted Holder” shall mean (i) a holder that is
an affiliate of the Company within the meaning of Rule 405, (ii) a holder who
acquires Exchange Securities outside the ordinary course of such holder153s
business, (iii) a holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Securities received by such broker-dealer pursuant to an Exchange Offer
in exchange for Registrable Securities acquired by the broker-dealer directly
from the Company.
“Rule 144,” “Rule 405,”
“Rule 415,” “Rule 424,”
“Rule 430B” and “Rule 433”
shall mean, in each case, such rule promulgated by the Commission under the
Securities Act (or any successor provision), as the same may be amended or
succeeded from time to time.
“Secondary Offer Registration Statement” shall mean
the Shelf Registration Statement required to be filed by the Company pursuant to
Section 2(a) or Section 2(c), as applicable. As used herein, references to a
Secondary Offer Registration Statement in the singular shall, if applicable, be
deemed to be in the plural.
“Secondary Offer Shelf Registration” shall mean the
filing of a Secondary Offer Registration Statement.
“Securities” shall mean, collectively, the Senior
Notes to be issued under the Senior Indenture for delivery to the Lenders
pursuant to Section 2.14(b) of the Loan Agreement upon exchange of Loans (as
defined in the Loan Agreement) in an equal principal amount, and securities
issued in exchange therefor or in lieu thereof pursuant to the Senior Indenture.
Each Security is entitled to the benefit of the guarantee provided by the
Guarantors in the Senior Indenture (the “Guarantee“)
and, unless the context otherwise requires, any reference herein to a
“Security,” an “Exchange
Security” or a “Registrable Security”
shall include a reference to the related Guarantee.
“Securities Act” shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated by the Commission
thereunder, as the same may be amended or succeeded from time to time.
“Senior Indenture” shall mean the Senior Indenture,
dated as of the date hereof, among the Company, the Guarantors and Wells Fargo
Bank, National Association, as Trustee, governing the Senior Notes, as the same
may be amended from time to time.
“Senior Cash Pay Notes” shall have the meaning set
forth in the preamble hereto.
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“Senior Notes” shall have the meaning set forth in
the preamble hereto.
“Senior PIK Notes” shall have the meaning set forth
in the preamble hereto.
“Shelf Registration” shall have the meaning
assigned thereto in Section 2(a).
“Shelf Registration Statement” shall have the
meaning assigned thereto in Section 2(a).
“Suspension Period” shall have the meaning assigned
thereto in Section 2(a).
“Trust Indenture Act” shall mean the Trust
Indenture Act of 1939, as amended, and the rules and regulations promulgated by
the Commission thereunder, as the same may be amended or succeeded from time to
time.
“Trustee” shall mean Wells Fargo Bank, National
Association, as trustee under the Senior Indenture, together with any successors
thereto in such capacity.
Unless the context otherwise requires, any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may be, of this Agreement,
and the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to use its
commercially reasonable efforts to file under the Securities Act, no later than
180 days after the Exchange Date, one or more “shelf” registration statements
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing, the
“Shelf Registration,” and such registration
statements, the “Shelf Registration Statement“). The
Company agrees to use all commercially reasonable efforts to cause such Shelf
Registration Statement to become or be declared effective as soon thereafter as
practicable, but in any event, the Company agrees to cause the Shelf
Registration Statement to become or be declared effective no later than 360 days
after the Exchange Date. The Company agrees to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of the
second anniversary of the Exchange Date or such time as there are no longer any
Registrable Securities outstanding. No holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder. The Company agrees, after the Effective Time
of the Shelf Registration Statement and promptly upon the request of any holder
of Registrable Securities that is not then an Electing Holder, to use all
commercially reasonable efforts to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant to Rules 430B and 424(b)
under the Securities Act identifying such holder), subject to Section 3(d)(iii).
Notwithstanding anything to the contrary in this Section 2(a), upon notice to
the Electing Holders, the Company may suspend the use or the effectiveness of
such Shelf Registration Statement, or extend the time period in which it is
required to file the Shelf Registration Statement, for one or more periods of up
to 90 days in the aggregate
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in any 12-month period (a “Suspension Period“) if
the Board of Directors of the Company determines that there is a valid business
purpose for suspension of the Shelf Registration Statement; provided
that the Company shall promptly notify the Electing Holders when the Shelf
Registration Statement may once again be used or is effective.
(b) In lieu of filing or causing to become effective a Shelf Registration
Statement pursuant to Section 2(a), the Company may elect to file under the
Securities Act, one or more registration statements relating to an offer to
exchange (such registration statements, together, the “Exchange
Registration Statement,” and such offer, the
“Exchange Offer“) any and all of the Securities for a
like aggregate principal amount of debt securities issued by the Company and
guaranteed by the Guarantors, which debt securities and guarantees are
substantially identical to the Securities and the related Guarantees,
respectively (and are entitled to the benefits of a trust indenture which is
substantially identical to the Senior Indenture or is the Senior Indenture and
which has been qualified under the Trust Indenture Act), except that they have
been registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for Additional Interest
contemplated in Section 2(d) below (such new debt securities hereinafter called
“Exchange Securities“). If the Company makes such
election, the Company agrees to use all commercially reasonable efforts to cause
the Exchange Registration Statement to become effective under the Securities Act
no later than 360 days after the Exchange Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the Exchange Act. If the
Company makes such election, unless the Exchange Offer would not be permitted by
applicable law or Commission policy, the Company further agrees to use all
commercially reasonable efforts to (i) commence the Exchange Offer promptly
following the Effective Time of such Exchange Registration Statement, (ii) hold
the Exchange Offer open for at least 20 Business Days in accordance with
Regulation 14E promulgated by the Commission under the Exchange Act, or longer,
if required by the federal securities laws and (iii) exchange Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn promptly following the expiration of the Exchange Offer. The
Exchange Offer will be deemed to have been “completed” only if: (i) the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and (ii) upon the Company
having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
20 Business Days following the commencement of the Exchange Offer. The Company
agrees (x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a broker-dealer
and (y) to keep such Exchange Registration Statement effective for a period (the
“Resale Period“) beginning when Exchange Securities
are first issued in the Exchange Offer and ending upon the earlier of the
expiration of the 90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement, such holders
that are broker-dealers shall have the benefit of the rights of indemnification
and contribution set forth in Subsections 6(a), (c), (d) and (e).
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(c) If the Company elects to file and cause to become effective an Exchange
Registration Statement pursuant to Section 2(b) and (i) on or prior to the time
the Exchange Offer is completed, existing law or Commission interpretations are
changed such that the debt securities or the related guarantees received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the Effective Time of
the Exchange Registration Statement is not within 360 days following the
Exchange Date and the Exchange Offer has not been completed within 30 Business
Days of such Effective Time or (iii) any holder of Registrable Securities
notifies the Company prior to the 20th Business Day following the
completion of the Exchange Offer that: (A) it is prohibited by law or Commission
policy from participating in the Exchange Offer, (B) it may not resell the
Exchange Securities to the public without delivering a prospectus and the
prospectus supplement contained in the Exchange Registration Statement is not
appropriate or available for such resales or (C) it is a broker-dealer and owns
Securities acquired directly from the Company or an affiliate of the Company,
then the Company and the Guarantors shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by Section
2(b), file under the Securities Act no later than 30 days after the time such
obligation to file arises (but no earlier than 360 days after the Exchange Date)
one or more Shelf Registration Statements. The Company agrees to use all
commercially reasonable efforts to cause the Shelf Registration Statement to
become or be declared effective no later than 90 days after such Shelf
Registration Statement filing obligation arises (but no earlier than 360 days
after the Exchange Date); provided that if at any time the Company is
or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is
eligible to file an “automatic shelf registration statement” (as defined in Rule
405), then the Company and the Guarantors shall file the Exchange Registration
Statement in the form of an automatic shelf registration statement. The Company
agrees to use all commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of the second anniversary of the Effective Time or such time as there are no
longer any Registrable Securities outstanding. No holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement or to use
the prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder. The Company agrees, after the
Effective Time of the Shelf Registration Statement and promptly upon the request
of any holder of Registrable Securities that is not then an Electing Holder, to
use all commercially reasonable efforts to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement (whether by
post-effective amendment thereto or by filing a prospectus pursuant to Rules
430B and 424(b) under the Securities Act identifying such holder), subject to
Section 3(d)(iii). Notwithstanding anything to the contrary in this Section
2(c), upon notice to the Electing Holders, the Company may suspend the use or
the effectiveness of such Shelf Registration Statement, or extend the time
period in which it is required to file the Shelf Registration Statement, for one
or more Suspension Periods if the Board of Directors of the Company determines
that there is a valid business purpose for suspension of the Shelf Registration
Statement; provided that the Company shall promptly notify the Electing
Holders when the Shelf Registration Statement may once again be used or is
effective.
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(d) In the event that (i) the Company and the Guarantors have not filed the
Exchange Registration Statement or the Shelf Registration Statement on or before
the date on which such registration statement is required to be filed pursuant
to Section 2(a), Section 2(b) or Section 2(c), as applicable, or (ii) such
Exchange Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the date on
which such registration statement is required to become or be declared effective
pursuant to Section 2(a), Section 2(b) or Section 2(c), as applicable, or (iii)
the Exchange Offer has not been completed within 30 Business Days after the
Effective Time of the Exchange Registration Statement relating to the Exchange
Offer (if the Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section 2(a),
Section 2(b) or Section 2(c) is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall become subject to an
effective stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except as
specifically permitted herein, including with respect to any Shelf Registration
Statement, during any applicable Suspension Period in accordance with the last
sentence of Section 2(a) or 2(c)) without being succeeded immediately by an
additional registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a “Registration
Default” and each period during which a Registration Default has
occurred and is continuing, a “Registration Default
Period“), then, as liquidated damages for such Registration
Default, subject to the provisions of Section 9(b), additional interest
(“Additional Interest“), in addition to the Base
Interest, shall accrue on the outstanding principal amount of the Registrable
Securities at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period and at a per annum rate of 0.50% thereafter for the
remaining portion of the Registration Default Period. Additional Interest shall
accrue and be payable only with respect to a single Registration Default at any
given time, notwithstanding the fact that multiple Registration Defaults may
exist at such time. The accrual of Additional Interest shall be the exclusive
monetary remedy available to the holders of Registrable Securities for any
Registration Default.
(e) The Company shall take, and shall cause the Guarantors to take, all
actions necessary or advisable to be taken by them to ensure that the
transactions contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Guarantees under the registration
statement contemplated in Section 2(a), Section 2(b) or Section 2(c), as
applicable.
(f) Any reference herein to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company and the Guarantors file a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c), the following provisions shall
apply:
(a) At or before the Effective Time of the Exchange Registration or the Shelf
Registration, whichever may be first, the Company shall qualify the Senior
Indenture under the Trust Indenture Act.
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(b) In the event that such qualification would require the appointment of a
new trustee under the Senior Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Senior Indenture.
(c) If the Company elects to file an Exchange Registration Statement pursuant
to Section 2(b), in connection with the Company153s and the Guarantors153
obligations with respect to the registration of Exchange Securities as
contemplated by Section 2(b) (the “Exchange
Registration“), if applicable, the Company and the Guarantors
shall:
(i) prepare and file with the Commission an Exchange Registration Statement
on any form which may be utilized by the Company and the Guarantors and which
shall permit the Exchange Offer and resales of Exchange Securities by
Participating Broker-Dealers during the Resale Period to be effected as
contemplated by Section 2(b), and use all commercially reasonable efforts to
cause such Exchange Registration Statement to become effective no later than 360
days after the Exchange Date;
(ii) promptly prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes contemplated in
Section 2(b) and as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each Participating Broker-Dealer
holding Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act, as such Participating Broker-Dealer reasonably may request prior
to the expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each Participating Broker-Dealer that has requested or
received copies of the prospectus included in such Exchange Registration
Statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and by
the blue sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional information
relating to such Exchange Registration Statement or prospectus, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of
such Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose,
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(F) the occurrence of any event that causes the Company to become an
“ineligible issuer” as defined in Rule 405, or (G) if at any time during the
Resale Period when a prospectus is required to be delivered under the Securities
Act, that such Exchange Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act or contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(iv) in the event that the Company and the Guarantors would be required,
pursuant to Section 3(c)(iii)(G), to notify any Participating Broker-Dealers
holding Exchange Securities (except as otherwise permitted during any Suspension
Period), promptly prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and shall 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 not misleading in
light of the circumstances then existing;
(v) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration Statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use all commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(b) no later than the commencement
of the Exchange Offer, to the extent required by such laws, (B) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period, (C) take any and all
other actions as may be reasonably necessary or advisable to enable each
Participating Broker-Dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions and (D) obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by Participating Broker-Dealers during
the Resale Period; provided, however, that neither the Company nor the
Guarantors shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2) consent to
general service of process in any such jurisdiction or become subject to
taxation in any such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or other governing documents or any agreement between
it and its stockholders;
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(vii) provide a CUSIP number for all Exchange Securities, not later than the
applicable Effective Time; and
(viii) comply with all applicable rules and regulations of the Commission,
and make generally available to its securityholders no later than eighteen
months after the Effective Time of such Exchange Registration Statement, an
earnings statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company, Rule 158
thereunder); provided, however, that this requirement shall be
deemed satisfied by the Company153s compliance with Section 4.03 of the Senior
Indenture.
(d) In connection with the Company153s and the Guarantors153 obligations with
respect to any Secondary Offer Shelf Registration, the Company and the
Guarantors shall use all commercially reasonable efforts to cause the applicable
Secondary Offer Registration Statement to permit the disposition of Registrable
Securities by the holders thereof (subject to any applicable Suspension Period)
in accordance with the intended method or methods of disposition thereof
provided for in the applicable Secondary Offer Registration Statement. In
connection therewith, the Company and the Guarantors shall:
(i) (A) prepare and file with the Commission, within the time periods
specified in Section 2(a) and Section 2(c) hereof, as applicable, a Secondary
Offer Registration Statement on any form which may be utilized by the Company
and the Guarantors, which shall register all of the Registrable Securities for
resale by the holders thereof in accordance with such method or methods of
disposition as may be specified by the holders of the Registrable Securities as,
from time to time, may be Electing Holders and (B) use all commercially
reasonable efforts to cause each such Secondary Offer Registration Statement to
become effective within the time periods specified in Section 2(a) and Section
2(c) hereof, as applicable;
(ii) mail the Notice and Questionnaire to the holders of Registrable
Securities (A) not less than 30 days prior to the anticipated Effective Time of
the Shelf Registration Statement or (B) in the case of an “automatic shelf
registration statement” (as defined in Rule 405), mail the Notice and
Questionnaire to the holders of Registrable Securities not later than the
Effective Time of such Shelf Registration Statement, and in any such case no
holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Securities at any time, unless
and until such holder has returned a completed and signed Notice and
Questionnaire to the Company; provided, however, that holders of
Registrable Securities shall have at least 28 calendar days from the date on
which the Notice and Questionnaire is first mailed to such holder to return a
completed and signed Notice and Questionnaire to the Company;
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(iii) after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to (A) take any action
to name such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming a part thereof
for resales of Registrable Securities until such holder has returned a completed
and signed Notice and Questionnaire to the Company and (B) nothing in this
clause (iii) shall require the Company or the Guarantors to file a
post-effective amendment to the Shelf Registration Statement more than once in
any 30-day period in respect of filings made pursuant to Section 2(a) or once in
any 45 day period in respect of filings made pursuant to Section 2(c);
provided, however, that this clause (B) shall not be
applicable for the last 60 days that the Shelf Registration Statement is
effective;
(iv) as soon as practicable (A) prepare and file with the Commission such
amendments and supplements to the Secondary Offer Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Secondary Offer Registration Statement for the period
specified in Section 2(a) and Section 2(c) hereof, as applicable, and as may be
required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Secondary Offer Registration
Statement and (B) furnish to the Electing Holders copies of any such supplement
or amendment simultaneously with or prior to its being used or filed with the
Commission to the extent such documents are not publicly available on the
Commission153s EDGAR System;
(v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Secondary Offer
Registration Statement in accordance with the intended methods of disposition
provided for therein by the Electing Holders;
(vi) provide a representative of the Electing Holders and not more than one
counsel for all the Electing Holders, in each case designated by the holders of
at least a majority in aggregate principal amount of the Registrable Securities
held by the Electing Holders at the time outstanding, the opportunity to
participate in the preparation of such Secondary Offer Registration Statement,
each prospectus included therein or filed with the Commission and each amendment
or supplement thereto;
(vii) for a reasonable period prior to the filing of such Secondary Offer
Registration Statement, and throughout the periods specified in Section 2(a) or
Section 2(c) hereof, as applicable, make available at reasonable times at the
Company153s principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) such financial and
other information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries, as shall be reasonably necessary (and in the case
of counsel, not violate an attorney-client privilege, in such counsel153s
reasonable belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within the meaning of
-12-
Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering on behalf of the Electing Holders
shall be conducted by one counsel designated by the holders of at least a
majority in aggregate principal amount of the Registrable Securities held by the
Electing Holders at the time outstanding and any managing underwriter
participating in the distribution of the Registrable Securities being sold; and
provided further that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or records
reasonably designated by the Company as being confidential, until such time as
(A) such information becomes a matter of public record (whether by virtue of its
inclusion in such Secondary Offer Registration Statement or otherwise), or (B)
such person shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt prior written notice
of such requirement), or (C) such information is required to be set forth in
such Secondary Offer Registration Statement or the prospectus included therein
or in an amendment to such Secondary Offer Registration Statement or an
amendment or supplement to such prospectus in order that such Secondary Offer
Registration Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain an untrue statement
of a material fact or omit to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders and any managing
underwriter thereof and confirm such advice in writing, (A) when such Secondary
Offer Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Secondary Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto which are relevant to the Electing
Holders or any managing underwriter, or any request by the Commission for
amendments or supplements to such Secondary Offer Registration Statement or
prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Secondary Offer
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company set forth in Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (F) the occurrence of any event that causes the Company to become an
“ineligible issuer” as defined in Rule 405, or (G) if at any time when a
prospectus is required to be delivered under the Securities Act, that such
Secondary Offer Registration Statement, prospectus, prospectus
-13-
amendment or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(ix) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Secondary Offer Registration
Statement or any post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any managing underwriter or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such Electing Holder and any managing underwriter specifies
should be included therein relating to the terms of the sale of such Registrable
Securities including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or managing
underwriter, the name and description of such Electing Holder or managing
underwriter, the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof and with respect to
any other terms of the offering of the Registrable Securities to be sold by such
Electing Holder or managing underwriter; and make all required filings of such
prospectus supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each managing underwriter, each Electing Holder and the
respective counsel referred to in Section 3(d)(vi) an executed copy (or, in the
case of an Electing Holder, a conformed copy) of such Secondary Offer
Registration Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder of Registrable
Securities, upon request) and documents incorporated by reference therein) and
such number of copies of such Secondary Offer Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by such underwriter or Electing Holder) and of the
prospectus included in such Secondary Offer Registration Statement (including
each preliminary prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the Securities Act and the
Trust Indenture Act to the extent such documents are not available through the
Commission153s EDGAR System, and such other documents, as such underwriter or
Electing Holder may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such Electing Holder or
underwritten by such underwriter and to permit such Electing Holder and managing
underwriter, if any, to satisfy the prospectus delivery requirements of the
Securities Act; and subject to Section 3(e), the Company and the Guarantors
hereby consent to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by each underwriter
and such
-14-
Electing Holder (in each case subject to any applicable Suspension Period),
in each case in the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable Securities covered
by the prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(xii) use all commercially reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Secondary Offer Registration
Statement under such securities laws or blue sky laws of such jurisdictions as
any Electing Holder or managing underwriter shall reasonably request, (B) keep
such registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to remain
effective under Section 2(a) or Section 2(c), as applicable and for so long as
may be necessary to enable any such Electing Holder or underwriter to complete
its distribution of Registrable Securities pursuant to such Secondary Offer
Registration Statement, (C) take any and all other actions as may be reasonably
necessary or advisable to enable each such Electing Holder or underwriter to
consummate the disposition in such jurisdictions of such Registrable Securities
and (D) obtain the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect such Secondary
Offer Registration Statement or the offering or sale in connection therewith or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities; provided, however, that
neither the Company nor the Guarantors shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general service of process in any such jurisdiction or
become subject to taxation in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or other governing documents or any
agreement between it and its stockholders;
(xiii) unless any Registrable Securities shall be in book-entry only form,
cooperate with the Electing Holders and the managing underwriter, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed, shall be
printed, penned, lithographed, engraved or otherwise produced by any combination
of such methods, and which certificates shall not bear any restrictive legends;
(xiv) provide a CUSIP number for all Registrable Securities not later than
the applicable Effective Time;
(xv) notify in writing each holder of Registrable Securities of any proposal
by the Company to amend or waive any provision of this Agreement pursuant to
Section 9(h) and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be; and
-15-
(xvi) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders no later than eighteen months
after the Effective Time of such Secondary Offer Registration Statement an
earnings statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company, Rule 158
thereunder); provided, however, that this requirement shall be
deemed satisfied by the Company153s compliance with Section 4.03 of the Senior
Indenture.
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(G), to notify the Electing Holders, and the managing underwriters, if
any, the Company shall promptly prepare and furnish to each of the Electing
Holders and the managing underwriters, if any, a reasonable number of copies of
a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and shall 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 not misleading in light of the circumstances then
existing. Each Electing Holder and each managing underwriter agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)(G), such
Electing Holder or managing underwriter shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Secondary Offer
Registration Statement applicable to such Registrable Securities until such
Electing Holder or managing underwriter shall have received copies of such
amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder or managing underwriter shall deliver to the Company (at the
Company153s expense) all copies, other than permanent file copies, then in such
Electing Holder153s or managing underwriter153s possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and Questionnaire
as to which any Shelf Registration pursuant to Section 2(a) or Section 2(c) is
being effected, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder153s intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder153s intended method of disposition of such Registrable Securities
or omits to state any material fact regarding such Electing Holder or such
Electing Holder153s intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information
-16-
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the Company
will not, and will not permit any of its “affiliates” (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement, or a valid exemption from the
registration requirements, under the Securities Act.
(h) As a condition to its participation in the Exchange Offer, each holder of
Registrable Securities shall furnish, upon the request of the Company, a written
representation to the Company (which may be contained in the letter of
transmittal or “agent153s message” transmitted via The Depository Trust Company153s
Automated Tender Offer Procedures, in either case contemplated by the Exchange
Registration Statement) to the effect that (A) it is not an “affiliate” of the
Company, as defined in Rule 405 of the Securities Act, or if it is such an
“affiliate,” it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (B) it is not
engaged in and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer, (C) it is acquiring the Exchange
Securities in its ordinary course of business, (D) if it is a broker-dealer that
holds Securities that were acquired for its own account as a result of
market-making activities or other trading activities (other than Securities
acquired directly from the Company or any of its affiliates), it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Securities received by it in the Exchange Offer, (E) if
it is a broker-dealer, that it did not purchase the Securities to be exchanged
in the Exchange Offer from the Company or any of its affiliates, and (F) it is
not acting on behalf of any person who could not truthfully and completely make
the representations contained in the foregoing subclauses (A) through (E).
4. Registration Expenses.
The Company and the Guarantors, jointly and severally, agree to bear and to
pay or cause to be paid promptly all expenses incident to the Company153s and the
Guarantors153 performance of or compliance with this Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses
including reasonable fees and disbursements of counsel for the Electing Holders
and any underwriters in connection with such registration, filing and review,
(b) all fees and expenses in connection with the qualification of the
Registrable Securities, for offering and sale under the state securities and
blue sky laws referred to in Section 3(d)(xii) and determination of their
eligibility for investment under the laws of such jurisdictions as the Electing
Holders or any underwriters may designate, including any reasonable fees and
disbursements of counsel for the Electing Holders and any underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein
-17-
or prepared for distribution pursuant hereto, each amendment or supplement to
the foregoing, the expenses of preparing the Registrable Securities for delivery
and the expenses of printing or producing any selling agreements and blue sky or
legal investment memoranda and all other documents in connection with the
offering, sale or delivery of Registrable Securities to be disposed of
(including certificates representing the Registrable Securities), (d) messenger,
telephone and delivery expenses relating to the offering, sale or delivery of
Registrable Securities and the preparation of documents referred in clause (c)
above, (e) fees and expenses of the Trustee under the Senior Indenture, any
agent of the Trustee and any counsel for the Trustee and of any custodian, (f)
the Company153s internal expenses (including all salaries and expenses of the
Company153s officers and employees performing legal or accounting duties), (g)
reasonable fees, disbursements and expenses of counsel and independent certified
public accountants of the Company, (h) reasonable fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection with a
Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (i) any
fees charged by securities rating services for rating the Registrable Securities
and (j) fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the “Registration Expenses“). To the
extent that any Registration Expenses are incurred, assumed or paid by any
holder or any placement or sales agent therefore or underwriter thereof, the
Company and the Guarantors shall reimburse such person for the full amount of
the Registration Expenses so incurred, assumed or paid promptly after receipt of
a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all placement or agency fees
and commissions and underwriting discounts and commissions, if any, and transfer
taxes, if any, attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. [Reserved].
6. Indemnification and Contribution.
(a) Indemnification by the Company and the Guarantors. The Company
and the Guarantors, jointly and severally, will indemnify and hold harmless each
of the holders of any Registrable Securities included in an Exchange
Registration Statement and each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement against any losses,
claims, damages or liabilities, joint or several, to which such holder or such
Electing Holder may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration Statement or
Secondary Offer Registration Statement, as the case may be, under which such
series of Registrable Securities were registered under the Securities Act, or
any preliminary, final or summary prospectus (including, without limitation, any
“issuer free writing prospectus” as defined in Rule 433) contained therein or
furnished by the Company to any such holder or such Electing Holder or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of any
prospectus, in the light of the circumstances in which they were made, not
-18-
misleading, except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, 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 such holder or Electing Holder
expressly for use therein. The Company and the Guarantors will reimburse any
such holder and such Electing Holder for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred.
(b) Indemnification by the Holders. Each holder of any Registrable
Securities included in an Exchange Registration Statement and each Electing
Holder of Registrable Securities included in a Shelf Registration Statement,
severally and not jointly, will (i) indemnify and hold harmless the Company, the
Guarantors, and all other holders and Electing Holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the
Company, the Guarantors or such other holders and Electing Holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement, or
any preliminary, final or summary prospectus (including, without limitation, any
“issuer free writing prospectus” as defined in Rule 433) contained therein or
furnished by the Company to any such Electing Holder, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of any prospectus, in the
light of the circumstances in which they were made, 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 furnished to the Company by such holder
or Electing Holder expressly for use therein, and (ii) reimburse the Company and
the Guarantors for any legal or other expenses reasonably incurred by the
Company and the Guarantors in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that no such Electing Holder shall be required to undertake liability to any
person under this Section 6(b) for any amounts in excess of the dollar amount of
the proceeds to be received by such Electing Holder from the sale of such
Electing Holder153s Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b). In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
-19-
not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or 6(b) are unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party 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 the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties153 relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(e) The obligations of the Company and the Guarantors under this Section 6
shall be in addition to any liability which the Company or the Guarantors may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder and Electing Holder and each
person, if any, who controls any holder or Electing Holder within the meaning of
the Securities Act; and the obligations of the holders and Electing Holders
contemplated by this Section 6 shall be in addition to any liability which the
respective holder may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or any of the Guarantors
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company or any of the Guarantors)
and to each person, if any, who controls the Company within the meaning of the
Securities Act.
-20-
7. Underwritten Offerings.
Each holder of Registrable Securities hereby agrees with the Company and each
other such holder that no holder of Registrable Securities may participate in
any underwritten offering hereunder unless (a) the Company gives its prior
written consent to such underwritten offering, (b) the managing underwriter or
underwriters thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to be
included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the Company, (c)
each holder of Registrable Securities participating in such underwritten
offering agrees to sell such holder153s Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (d) each holder of Registrable
Securities participating in such underwritten offering completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall 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 limitations of the exemption provided by Rule 144. Upon the request of any
holder of Registrable Securities in connection with that holder153s sale pursuant
to Rule 144, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors
represent, warrant, covenant and agree that they have not granted, and shall not
grant, registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) [Reserved].
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally, by facsimile or
by courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If to the
Company, to it at
First Data Corporation
6200 South Quebec Street
Greenwood Village, Colorado 80111
Fax No.: (303) 889-6615
Attention: General Counsel
-21-
with a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Ave. New York,
New York 10017
Facsimile No.: (212) 455-2502
Attention: Richard Fenyes, Esq.
and if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as the
Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and the holders from time to time of the
Registrable Securities and the respective successors and assigns of the parties
hereto and such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all of the
applicable terms and provisions of this Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Registrable Securities, any director, officer or partner of such
holder, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the Loan
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of an Exchange Offer.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
-22-
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Senior Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company, the holders of at least a majority in
aggregate principal amount of the Registrable Securities at the time outstanding
and, if any Loans are outstanding under the Loan Agreement, the Lenders holding
at least a majority in aggregate principal amount of the Loans then outstanding
thereunder. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying on
any Business Day by any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Senior Indenture and this
Agreement) at the offices of the Company at the address thereof set forth in
Section 9(c) and at the office of the Trustee under the Senior Indenture.
(j) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(k) Severability. If any provision of this Agreement, or the
application thereof in any circumstance, is held to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of such provision in every other respect and of the remaining
provisions contained in this Agreement shall not be affected or impaired
thereby.
-23-
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Lenders, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Lenders, the Guarantors and
the Company.
|
Very truly yours, |
||
|
FIRST DATA CORPORATION |
||
|
By: |
/s/ Philip M. Wall |
|
|
Name: |
Philip M. Wall |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
Signature Page to Registration Rights Agreement
|
The following entities, each as Guarantor: |
||
|
ACHEX, INC. |
||
|
ATLANTIC BANKCARD PROPERTIES CORPORATION |
||
|
ATLANTIC STATES BANKCARD ASSOCIATION, INC. |
||
|
B1 PTI SERVICES, INC. |
||
|
BANKCARD INVESTIGATIVE GROUP INC. |
||
|
BUSINESS OFFICE SERVICES, INC. |
||
|
BUYPASS INCO CORPORATION |
||
|
CALL INTERACTIVE HOLDINGS LLC |
||
|
CALLTELESERVICES, INC. |
||
|
CARDSERVICE DELAWARE, INC. |
||
|
CARDSERVICE INTERNATIONAL, INC. |
||
|
CESI HOLDINGS, INC. |
||
|
CIFS CORPORATION |
||
|
CIFS LLC |
||
|
CONCORD COMPUTING CORPORATION |
||
|
CONCORD CORPORATE SERVICES, INC. |
||
|
CONCORD EFS FINANCIAL SERVICES, INC. |
||
|
CONCORD EFS, INC. |
||
|
CONCORD EMERGING TECHNOLOGIES, INC. |
||
|
CONCORD EQUIPMENT SALES, INC. |
||
|
CONCORD FINANCIAL TECHNOLOGIES, INC. |
||
|
CONCORD NN, LLC |
||
S-1
|
CONCORD ONE, LLC |
||
|
CONCORD PAYMENT SERVICES, INC. |
||
|
CONCORD PROCESSING, INC. |
||
|
CONCORD TRANSACTION SERVICES, LLC |
||
|
CREDIT PERFORMANCE INC. |
||
|
CTS HOLDINGS, LLC |
||
|
CTS, INC. |
||
|
DDA PAYMENT SERVICES, LLC |
||
|
DW HOLDINGS, INC. |
||
|
EFS TRANSPORTATION SERVICES, INC. |
||
|
EFTLOGIX, INC. |
||
|
EPSF CORPORATION |
||
|
FDC INTERNATIONAL INC. |
||
|
FDFS HOLDINGS, LLC |
||
|
FDGS HOLDINGS GENERAL PARTNER II, LLC |
||
|
FDGS HOLDINGS, LLC |
||
|
FDGS HOLDINGS, LP |
||
|
FDMS PARTNER, INC. |
||
|
FDR INTERACTIVE TECHNOLOGIES CORPORATION |
||
|
FDR IRELAND LIMITED |
||
|
FDR MISSOURI INC. |
||
|
FDR SIGNET INC. |
||
|
FDR SUBSIDIARY CORP. |
||
|
FIRST DATA FINANCIAL SERVICES, L.L.C. |
||
|
FIRST DATA AVIATION LLC |
||
S-2
|
FIRST DATA CARD SOLUTIONS, INC. |
||
|
FIRST DATA COMMERCIAL SERVICES HOLDINGS, INC. |
||
|
FIRST DATA COMMUNICATIONS CORPORATION |
||
|
FIRST DATA GOVERNMENT SOLUTIONS, INC. |
||
|
FIRST DATA GOVERNMENT SOLUTIONS, LLC |
||
|
FIRST DATA GOVERNMENT SOLUTIONS, LP |
||
|
FIRST DATA INTEGRATED SERVICES INC. |
||
|
FIRST DATA LATIN AMERICA INC. |
||
|
FIRST DATA MERCHANT SERVICES CORPORATION |
||
|
FIRST DATA MERCHANT SERVICES NORTHEAST, LLC |
||
|
FIRST DATA MERCHANT SERVICES SOUTHEAST, L.L.C. |
||
|
FIRST DATA MOBILE HOLDINGS, INC. |
||
|
FIRST DATA PAYMENT SERVICES, LLC |
||
|
FIRST DATA PITTSBURGH ALLIANCE PARTNER INC. |
||
|
FIRST DATA PS ACQUISITION INC. |
||
|
FIRST DATA REAL ESTATE HOLDINGS L.L.C. |
||
|
FIRST DATA RESOURCES, LLC |
||
|
FIRST DATA RETAIL ATM SERVICES L.P. |
||
|
FIRST DATA SECURE LLC |
||
|
FIRST DATA SOLUTIONS L.L.C. |
||
|
FIRST DATA TECHNOLOGIES, INC. |
||
S-3
|
FIRST DATA VOICE SERVICES |
||
|
FIRST DATA, L.L.C. |
||
|
FSM SERVICES INC. |
||
|
FUNDSXPRESS FINANCIAL NETWORK, INC. |
||
|
FUNDSXPRESS, INC. |
||
|
FX SECURITIES, INC. |
||
|
GIBBS MANAGEMENT GROUP, INC. |
||
|
GIFT CARD SERVICES, INC. |
||
|
H & F SERVICES, INC. |
||
|
ICVERIFY INC. |
||
|
IDLOGIX, INC. |
||
|
INITIAL MERCHANT SERVICES, LLC |
||
|
INSTANT CASH SERVICES, LLC |
||
|
INTELLIGENT RESULTS, INC. |
||
|
IPS INC. |
||
|
JOT, INC. |
||
|
LINKPOINT INTERNATIONAL, INC. |
||
|
LOYALTYCO LLC |
||
|
MAS INCO CORPORATION |
||
|
MAS OHIO CORPORATION |
||
|
MONEY NETWORK FINANCIAL, LLC |
||
|
NATIONAL PAYMENT SYSTEMS INC. |
||
|
NEW PAYMENT SERVICES, INC. |
||
|
NPSF CORPORATION |
||
|
PAYPOINT ELECTRONIC PAYMENT SYSTEMS, LLC |
||
S-4
|
PAYSYS INTERNATIONAL, INC. |
||
|
POS HOLDINGS, INC. |
||
|
QSAT FINANCIAL, LLC |
||
|
REMITCO LLC |
||
|
SHARED GLOBAL SYSTEMS, INC. |
||
|
SIZE TECHNOLOGIES, INC. |
||
|
SOUTHERN TELECHECK, INC. |
||
|
STAR NETWORKS, INC. |
||
|
STAR PROCESSING, INC. |
||
|
STAR SYSTEMS ASSETS, INC. |
||
|
STAR SYSTEMS, INC. |
||
|
STAR SYSTEMS, LLC |
||
|
STRATEGIC INVESTMENT ALTERNATIVES LLC |
||
|
SY HOLDINGS, INC. |
||
|
TASQ CORPORATION |
||
|
TASQ TECHNOLOGY, INC. |
||
|
TAXWARE, LLC |
||
|
TELECHECK ACQUISITION LLC |
||
|
TELECHECK HOLDINGS, INC. |
||
|
TELECHECK INTERNATIONAL, INC. |
||
|
TELECHECK PITTSBURGH/WEST VIRGINIA, INC. |
||
|
TRANSACTION SOLUTIONS HOLDINGS, INC. |
||
|
TRANSACTION SOLUTIONS, LLC |
||
|
UNIFIED MERCHANT SERVICES |
||
|
UNIFIED PARTNER, INC. |
||
S-5
|
VALUELINK, LLC |
||||
|
VIRTUAL FINANCIAL SERVICES, LLC |
||||
|
YCLIP, LLC |
||||
|
By: |
/s/ Stanley J. Andersen |
|||
|
Name: |
Stanley J. Andersen |
|||
|
Title: |
Vice President and Assistant Secretary |
|||
|
The following entities, each as Guarantor: |
||||
|
FIRST DATA CAPITAL, INC. |
||||
|
FIRST DATA DIGITAL CERTIFICATES INC. |
||||
|
GRATITUDE HOLDINGS LLC |
||||
|
IPS HOLDINGS INC. |
||||
|
SAGEBRUSH HOLDINGS INC. |
||||
|
SAGETOWN HOLDINGS INC. |
||||
|
SAGEVILLE HOLDINGS LLC |
||||
|
SUREPAY REAL ESTATE HOLDINGS, INC. |
||||
|
TECHNOLOGY SOLUTIONS INTERNATIONAL, INC. |
||||
|
UNIBEX, LLC |
||||
|
By: |
/s/ Stanley J. Andersen |
|||
|
Name: |
Stanley J. Andersen |
|||
|
Title: |
President |
|||
S-6
|
FDR LIMITED, as Guarantor |
||||
|
By: |
/s/ Philip M. Wall |
|||
|
Name: |
Philip M. Wall |
|||
|
Title: |
Chief Financial Officer |
|||
S-7
|
The following entities, each as Guarantor: |
||
|
TELECHECK SERVICES, INC. |
||
|
TELECHECK ACQUISITION-MICHIGAN, LLC |
||
|
By: |
/s/ Stanley J. Andersen |
|
|
Name: |
Stanley J. Andersen |
|
|
Title: |
Assistant Secretary |
|
S-8
|
The foregoing Agreement is hereby confirmed and accepted as of the date first |
||
|
By: Citibank, N.A. |
||
|
By: |
/s/ Caesar Wyszornirski |
|
|
Name: Caesar Wyszornirski |
||
|
Title: Vice President |
||
|
As administrative agent for the Lenders under the Loan Agreement |
||
S-9
Exhibit A
First Data Corporation
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT – IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE:
[DATE]*
The Depository Trust Company (“DTC“) has identified you as a DTC
Participant through which beneficial interests in the First Data Corporation
(the “Company“) Senior Cash Pay Notes due 2015 and Senior PIK Notes due
2015 (collectively, the “Securities“) are held.
The Company and the Guarantors are in the process of registering the
Securities under the Securities Act of 1933 for resale by the beneficial owners
thereof. In order to have their Securities included in the registration
statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact First Data Corporation, David R. Money, General Counsel, (303) 967-8000.
|
* |
Not less than 28 calendar days from date of mailing. |
A-1
First Data Corporation
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement
(the “Exchange and Registration Rights Agreement“) among First Data
Corporation (the “Company“), the Guarantors named therein and the
Administrative Agent on behalf of the Lenders. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed or will file with the
United States Securities and Exchange Commission (the “Commission“) a
registration statement on Form [__] (the “Shelf
Registration Statement“) for the registration and resale under Rule 415 of
the Securities Act of 1933, as amended (the “Securities Act“), of the
Company153s Senior Cash Pay Notes due 2015 and Senior PIK Notes due 2015
(collectively, the “Securities“). A copy of the Exchange and
Registration Rights Agreement has been filed as an exhibit to the Shelf
Registration Statement and can be obtained from the Commission153s website at
www.sec.gov. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire (“Notice and
Questionnaire“) must be completed, executed and delivered to the Company153s
counsel at the address set forth herein for receipt ON OR BEFORE
[Deadline for Response]. Beneficial owners of Registrable
Securities who do not properly complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder
in the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term “Registrable Securities” is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the “Selling Securityholder“) of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto. In addition, the undersigned, by signing and
returning this Notice and Questionnaire, represents and warrants that the
representation set forth in Section 3(h) of the Exchange and Registration Rights
Agreement is true and correct as of the date hereof.
Pursuant to the Exchange and Registration Rights Agreement, the undersigned
has agreed to indemnify and hold harmless the Company, its officers who sign any
Shelf Registration Statement, and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act of 1934, as amended (the “Exchange Act“), against
certain loses arising out of an untrue statement, or the alleged untrue
statement, of a material fact in the Shelf Registration Statement or the related
prospectus or the omission, or alleged omission, to state a material fact
required to be stated in such Shelf Registration Statement or the related
prospectus, but only to the extent such untrue statement or omission, or alleged
untrue statement or omission, was made in reliance on and in conformity with the
information provided in this Notice and Questionnaire.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
A-3
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
|
(1) |
(a) |
Full legal name of Selling Securityholder: |
||||
|
_________________________________________________________________________________________ |
||||||
|
(b) |
Full legal name of registered Holder (if not the same as in (a) above) of |
|||||
|
_________________________________________________________________________________________ |
||||||
|
(c) |
Full legal name of DTC Participant (if applicable and if not the same as (b) |
|||||
|
_________________________________________________________________________________________ |
||||||
|
(2) |
Address for notices to Selling Securityholder: |
|||||
|
_________________________________________________________________________________________ |
||||||
|
_________________________________________________________________________________________ |
||||||
|
_________________________________________________________________________________________ |
||||||
|
Telephone: |
||||||
|
Fax: |
|
Contact Person: |
|
E-mail for Contact Person: |
||||||
|
(3) |
Beneficial Ownership of Securities: |
|||||
|
Except as set forth below in this Item (3), the undersigned does not |
||||||
|
(a) |
Principal amount of Registrable Securities beneficially owned: |
|||||
|
CUSIP No(s). of such Registrable Securities: |
||||||
|
(b) |
Principal amount of Securities other than Registrable Securities beneficially |
|||||
|
_________________________________________________________________________________________ |
||||||
|
CUSIP No(s). of such other Securities: |
||||||
|
(c) |
Principal amount of Registrable Securities that the undersigned wishes to be |
|||||
|
CUSIP No(s). of such Registrable Securities to be included in the Shelf |
||||||
A-4
|
(4) |
Beneficial Ownership of Other Securities of the Company: |
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
|
(5) |
Individuals who exercise dispositive powers with respect to the Securities: |
If the Selling Securityholder is not an entity that is required to file
reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(a “Reporting Company”), then the Selling Securityholder must disclose the name
of the natural person(s) who exercise sole or shared dispositive powers with
respect to the Securities. Selling Securityholders should disclose the
beneficial holders, not nominee holders or other such others of record. In
addition, the Commission has provided guidance that Rule 13d-3 of the Securities
Exchange Act of 1934 should be used by analogy when determining the person or
persons sharing voting and/or dispositive powers with respect to the
Securities.
|
(a) |
Is the holder a Reporting Company? |
Yes No
If “No“, please answer Item (5)(b).
|
(b) |
List below the individual or individuals who exercise dispositive powers with |
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
Please note that the names of the persons listed in (b) above
will be included in the Shelf Registration Statement and related
Prospectus.
|
(6) |
Relationships with the Company: |
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
A-5
|
(7) |
Plan of Distribution: |
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder. Such Registrable Securities
may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of sale, or
at negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of Registrable Securities without the prior written
agreement of the Company.
|
(8) |
Broker-Dealers: |
The Commission requires that all Selling Securityholders that are
registered broker-dealers or affiliates of registered broker-dealers be so
identified in the Shelf Registration Statement. In addition, the Commission
requires that all Selling Securityholders that are registered broker-dealers be
named as underwriters in the Shelf Registration Statement and related
Prospectus, even if they did not receive the Registrable Securities as
compensation for underwriting activities.
|
(a) |
State whether the undersigned Selling Securityholder is a registered |
Yes No
|
(b) |
If the answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) |
A-6
|
(i) |
Were the Securities acquired as compensation for underwriting activities? |
Yes No
If you answered “Yes”, please provide a brief description of the
transaction(s) in which the Securities were acquired as compensation:
|
(ii) |
Were the Securities acquired for investment purposes? |
Yes No
|
(iii) |
If you answered “No” to both (i) and (ii), please explain the Selling |
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
|
(c) |
State whether the undersigned Selling Securityholder is an affiliate of a |
Yes No
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
|
(d) |
If you answered “Yes” to question (c) above: |
|
(i) |
Did the undersigned Selling Securityholder purchase Registrable Securities in |
Yes No
If the answer is “No” to question (d)(i), provide a brief explanation of the
circumstances in which the Selling Securityholder acquired the Registrable
Securities:
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
A-7
|
(ii) |
At the time of the purchase of the Registrable Securities, did the |
Yes No
If the answer is “Yes” to question (d)(ii), provide a brief explanation of
such agreements, understandings or arrangements:
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
If the answer is
“No“ to Item (8)(d)(i) or
“Yes“ to Item (8)(d)(ii),
you will be named as an underwriter in the Shelf Registration Statement and the
related Prospectus.
|
(9) |
Hedging and short sales: |
|
(a) |
State whether the undersigned Selling Securityholder has or will enter into |
Yes No
If “Yes”, provide below a complete description of the hedging transactions
into which the undersigned Selling Securityholder has entered or will enter and
the purpose of such hedging transactions, including the extent to which such
hedging transactions remain in place:
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
|
(b) |
Set forth below is Interpretation A.65 of the Commission153s July 1997 Manual |
“An issuer filed a Form S-3 registration statement for a secondary
offering of common stock which is not yet effective. One of the selling
shareholders wanted to do a short sale of common stock “against the box” and
cover the short sale with registered shares after the effective date. The issuer
was advised that the short sale could not be made before the registration
statement becomes effective, because the shares underlying the short sale are
deemed to be sold at the time such sale is made. There would, therefore, be a
violation of Section 5 if the shares were effectively sold prior to the
effective date.”
By returning this Notice and Questionnaire, the undersigned Selling
Securityholder will be deemed to be aware of the foregoing interpretation.
A-8
* * * * *
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act, particularly Regulation M (or any successor rule or
regulation).
The Selling Securityholder hereby acknowledges its obligations under the
Exchange and Registration Rights Agreement to indemnify and hold harmless the
Company and certain other persons as set forth in the Exchange and Registration
Rights Agreement.
In the event that the Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (9) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder153s obligation under Section 3(d)
of the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in effect
and to provide such additional information that the Company may reasonably
request regarding such Selling Securityholder and the intended method of
distribution of Registrable Securities in order to comply with the Securities
Act. Except as otherwise provided in the Exchange and Registration Rights
Agreement, all notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
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(i) To the Company: |
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First Data Corporation |
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6200 South Quebec Street |
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Greenwood Village, Colorado 80111 |
||
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Attention: [General Counsel] |
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(ii) With a copy to: |
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Simpson Thacher & Bartlett LLP |
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425 Lexington Avenue |
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New York, New York 10017 |
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|
Attention: [ ] |
||
A-9
Once this Notice and Questionnaire is executed by the Selling Securityholder
and received by the Company153s counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Notice and Questionnaire shall be governed in all respects by
the laws of the State of New York.
A-10
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
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Selling Securityholder |
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(Print/type full legal name of beneficial owner of Registrable Securities) |
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By: |
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Name: |
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Title: |
||
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE]
TO THE COMPANY153S COUNSEL AT:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: [ ]
A-11
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
First Data Corporation
c/o [Name of Trustee]
[Address of Trustee]
Attention: Trust Officer
|
Re: |
First Data Corporation (the “Company“) |
|
Senior |
Cash Pay Notes due 2015 and Senior PIK Notes due 2015 |
Dear Sirs:
Please be advised that has transferred $ aggregate principal amount of
the above-referenced Senior Notes pursuant to an effective Registration
Statement on Form [ ] (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Senior Notes is named as a “Selling Holder” in the
Prospectus dated [date] or in supplements thereto, and that the
aggregate principal amount of the Senior Notes transferred are the Senior Notes
listed in such Prospectus opposite such owner153s name.
Dated:
|
Very truly yours, |
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(Name) |
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By: |
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(Authorized Signature) |
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B-1
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