EXHIBIT 4.10
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
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Among
▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL, INC.
COMPANY
SUPREME MUNSINGWEAR CANADA, INC.
SUPREME INTERNATIONAL CORPORATION DE MEXICO, S.A. de C.V.
BBI RETAIL LLC
▇▇▇▇▇▇▇ APPAREL CORP.
GUARANTORS
and
FIRST UNION SECURITIES, INC.
INITIAL PURCHASER
Dated: March 22, 2002
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March
22, 2002 is made and entered into among ▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL, INC., a
Florida corporation (the "Company"), SUPREME MUNSINGWEAR CANADA, INC., a
corporation organized under the laws of Canada, SUPREME INTERNATIONAL
CORPORATION DE MEXICO, S.A., de C.V., a corporation organized under the laws of
Mexico, BBI RETAIL LLC, a Florida limited liability company, and ▇▇▇▇▇▇▇ APPAREL
CORP., a Delaware corporation, (collectively, the "Guarantors") and FIRST UNION
SECURITIES, INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated March
15, 2002 among the Company, the Guarantors and the Initial Purchaser (the
"Purchase Agreement"), which provides for the issue and sale by the Company to
the Initial Purchaser of $57,000,000 aggregate principal amount of the Company's
9 1/2% Senior Secured Notes due March 15, 2009 (the "Notes"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company and the
Guarantors has agreed to provide to the Initial Purchaser and its direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
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capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Company" shall have the meaning set forth in the preamble of this
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Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
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depositary appointed by the Company; provided, however, that such depositary
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must have an address in the Borough of Manhattan in the City of New York.
"Exchange Notes" shall mean 9 1/2% Series B Senior Secured Notes due
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March 15, 2009 of the Company, issued under the Indenture, containing terms
identical to the Notes (except that (a) interest thereon shall accrue from the
last date on which interest was paid on the Notes or, if no such interest has
been paid, from ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the transfer restrictions thereon shall be
eliminated and (c) certain provisions relating to an increase in the stated rate
of interest thereon shall be eliminated), to be offered to Holders of
Registrable Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
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Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
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Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Guarantors" shall have the meaning set forth in the preamble of this
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Agreement.
"Holders" shall mean the Initial Purchaser, for so long as it owns any
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Registrable Notes, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture relating to the Notes dated as of
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March 22, 2002, among the Company, the Guarantors and State Street Bank and
Trust Company, N.A. as trustee (the "Trustee"), as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
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of this Agreement.
"Issue Date" means March 22, 2002.
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"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of Registrable Notes outstanding; provided that
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whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its affiliates (as such term is defined in Rule 405 under the ▇▇▇▇
▇▇▇) (other than the Initial Purchaser or subsequent holders of Registrable
Notes if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Notes" shall have the meaning set forth in the preamble of this
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Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
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Section 3(f).
"Person" shall mean an individual, partnership, limited liability
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company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
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of this Agreement.
"Registrable Notes" shall mean the Notes; provided, however, that any
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Notes shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes shall have been declared effective under the 1933 Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Notes shall have ceased to be outstanding or (iv) such Notes have
been exchanged for Exchange Notes upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of one counsel for any underwriters and
Holders in connection with state or blue sky qualification of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements, certificates
representing the Exchange Notes and other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and expenses incurred in connection with the listing, if any, of any of the
Registrable Notes on any securities exchange or exchanges, (vi) the fees and
disbursements of counsel for the Company and its subsidiaries and, in the case
of a Shelf Registration Statement, the reasonable fees and disbursements
(including the expenses of preparing and distributing any underwriting or
securities sales agreements) of one counsel for the Holders (which counsel shall
be selected in writing by the Majority Holders), (vii) the fees and expenses of
the independent public accountants of the Company and the Guarantors, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (viii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (ix) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(x) the fees and expenses of a "qualified independent underwriter" as defined by
Conduct Rule 2720 of the NASD, if required by the NASD rules, in connection with
the offering of the Registrable Notes; and (xi) in the case of any underwritten
offering, any fees and disbursements of the underwriters customarily required to
be paid by issuers or sellers of securities and the reasonable fees and expenses
of any experts retained by the Company and the Guarantors in connection with any
Registration Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable Notes
by a Holder.
"Registration Statement" shall mean any registration statement of the
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Company and the Guarantors which covers any of the Exchange Notes or Registrable
Notes pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"TIA" shall have the meaning set forth in Section 3(m).
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"Shelf Registration Statement" shall mean a shelf registration
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statement of the Company and the Guarantors pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the then Registrable Notes on
an appropriate form under Rule 415 under the 1933 Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
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Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇. (a) Exchange Offer
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Registration. The Company and the Guarantors shall, at their own expense (i)
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file within 65 days after the Issue Date an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Notes for Exchange Notes, (ii) use their best efforts to cause
such Exchange Offer Registration Statement to be declared effective by the SEC
within 135 days after the Issue Date, (iii) cause such Registration Statement to
remain effective until the closing of the Exchange Offer and (iv) use their best
efforts to consummate the Exchange Offer within 160 days following the Issue
Date. The Exchange Notes will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder (other than Participating Broker-Dealers) eligible
and electing to exchange Registrable Notes for Exchange Notes (assuming that
such Holder (i) is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act, (ii) acquires the Exchange Notes in the ordinary course
of such Holder's business and (iii) has no arrangements or understandings with
any Person to participate in the Exchange Offer for the purpose of distributing
the Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the Company and the Guarantors
shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) use the services of the Depositary for the Exchange Offer with
respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to 5:00 P.M. New York City time, on the last business day on
which the Exchange Offer
shall remain open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Notes delivered for
exchange, and a statement that such Holder is withdrawing its election to
have such Notes exchanged; and
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the Company;
and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Notes to each Holder of Registrable Notes equal in principal amount to the
principal amount of the Registrable Notes of such Holder so accepted for
exchange.
Interest will accrue on each Exchange Note exchanged for a Registrable
Note, from the last date on which interest was paid on the Notes surrendered in
exchange therefor. If no interest has been paid on the Notes, such interest will
accrue from March 22, 2002. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, and (ii) the due tendering of
Registrable Notes in accordance with the Exchange Offer. Each Holder of
Registrable Notes (other than Participating Broker-Dealers) who wishes to
exchange such Registrable Notes for Exchange Notes in the Exchange Offer shall
represent that (i) it is not an affiliate (as defined in Rule 405 under the ▇▇▇▇
▇▇▇) of the Company or any Guarantors or, if it is such an affiliate, it will
comply with the registration and prospectus delivery requirements of the 1933
Act to the extent applicable, (ii) any Exchange Notes to be received by it will
be acquired in the ordinary course of business and (iii) at the time of the
commencement of the Exchange Offer it has no arrangement with any Person to
participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Notes and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or another appropriate form under the 1933 Act
available. The Company shall inform the Initial Purchaser of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Notes in the Exchange Offer.
(b) Shelf Registration. In the event that (i) any changes in law or
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the applicable interpretations of the staff of the SEC do not permit the Company
to effect the Exchange Offer as contemplated by Section 2(a) hereof; (ii) if for
any other reason the Exchange Offer is not consummated within 160 days following
the Issue Date; (iii) if any Holder (other than an Initial Purchaser) is not
eligible to participate in the Exchange Offer or (iv) upon the request of any
Initial Purchaser (with respect to any Registrable Notes which it acquired from
the
Company) following the consummation of the Exchange Offer if any such Initial
Purchaser shall hold Registrable Notes which it acquired directly from the
Company and if such Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to applicable law or applicable
interpretation of the staff of the SEC to participate in the Exchange Offer, the
Company and the Guarantors shall, at their own cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Notes by the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of Registrable Notes and set
forth in such Shelf Registration Statement, and use their best efforts to
cause such Shelf Registration Statement to be declared effective by the SEC
within 160 days after the Issue Date (or promptly in the event of a request
by an Initial Purchaser pursuant to clauses (iv) above). In the event that
the Company is required to file a Shelf Registration Statement upon the
request of any Holder (other than an Initial Purchaser) not eligible to
participate in the Exchange Offer pursuant to clause (iii) above or upon
the request of any Initial Purchaser pursuant to clause (iv) above, the
Company and the Guarantors shall file and use their best efforts to have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Notes and a Shelf
Registration Statement (which may be a Registration Statement combined with
the Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Notes held by such Holder or such Initial Purchaser after
completion of the Exchange Offer;
(B) use their best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date the
Shelf Registration Statement is declared effective by the SEC (or one year
from the date the Shelf Registration Statement is declared effective if
such Shelf Registration Statement is filed upon the request of any Initial
Purchaser pursuant to clause (iv) above) or such shorter period which will
terminate when all of the Registrable Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (x) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto comply in all material respects with the 1933 Act and
the rules and regulations thereunder, (y) any Shelf Registration Statement
and any amendment thereto do not, upon effectiveness, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (z) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), do not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they were made,
not misleading.
The Company and the Guarantors further agree, if necessary, to
supplement or amend the Shelf Registration Statement if requested by the
Majority Holders of Notes that are Registrable Notes with respect to information
relating to the Holders and otherwise as required by Section 3(b) below, to use
all reasonable efforts to cause any such amendment to become
effective and such Shelf Registration to become usable as soon as thereafter
practicable and to furnish to the Holders of Registrable Notes copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Company and the Guarantors shall pay all
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Registration Expenses in connection with the registration pursuant to Section
2(a) and 2(b) and, in the case of an Exchange Offer Registration Statement, will
reimburse the Initial Purchaser, for the reasonable fees and disbursements of
one firm or counsel in connection therewith. Each Holder shall pay all expenses
of its counsel other than as set forth in the preceding sentence, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. (i) The Company and the
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Guarantors will be deemed not to have used their best efforts to cause a
Registration Statement to become, or to remain, effective during the requisite
periods set forth herein if they voluntarily take any action that would result
in any such Registration Statement not being declared effective or in the
Holders of Registrable Notes covered thereby not being able to exchange or offer
and sell such Registrable Notes during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company and the
Guarantors in good faith and for valid business reasons (not including avoidance
of the Company's and the Guarantors's obligations hereunder), including a
material corporate transaction, so long as the Company promptly complies with
the requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has
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been declared effective, the offering of Registrable Notes pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Notes pursuant to such Registration Statement may legally
resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange
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Offer Registration Statement is not filed with the SEC on or prior to the 65th
calendar day after the Issue Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 135th calendar day after
the Issue Date, (iii) the Exchange Offer is not consummated on or prior to the
160th calendar day after the Issue Date or, as the case may be, a Shelf
Registration Statement with respect to the Registrable Notes is not declared
effective on or prior to the 160th day after the Issue Date or (iv) the Exchange
Offer Registration Statement or the Shelf Registration Statement is declared
effective but thereafter ceases to be effective or usable within the applicable
period as provided in this Agreement (each such event referred to in clauses (i)
through (iv) above, a "Registration Default"), the Company shall be required to
pay additional interest in cash on each Interest Payment Date (as defined in the
Indenture) in an amount equal to one-quarter of one percent (0.25%) per annum of
the principal amount of the Notes, with respect to the first 90-day period
following such Registration Default. The amount of such additional interest will
increase by an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period until such Registration Default has been cured, up to a
maximum of
one percent (1%) per annum. Upon (w) the filing of the Exchange Offer
Registration Statement after the 65-day period described in clause (i) above,
(x) the effectiveness of the Exchange Offer Registration Statement after the
135-day period described in clause (ii) above, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement after the
160-day period, as the case may be, described in clause (iii) above, or (z) the
cure of any Registration Default described in clause (iv) above, such additional
interest shall cease to accrue on the Notes from the date of such filing,
effectiveness, consummation or cure, as the case may be, if the Company is
otherwise in compliance with this paragraph; provided, however, that if, after
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any such additional interest ceases to accrue, a different event specified in
clause (i), (ii), (iii) or (iv) above occurs, such additional interest shall
begin to accrue again pursuant to the foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies available
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to the Initial Purchaser and the Holders, the Company and the Guarantors
acknowledge that any failure by the Company and the Guarantors to comply with
their obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
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the Company and the Guarantors with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the 1933
Act, which form (i) shall be selected by the Company and the Guarantors, (ii)
shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and (iii) shall comply as to
form in all material respects with the requirements of the applicable form
required by the SEC and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use their best efforts
to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the 1933 Act; and comply with the provisions of the 1933 Act with respect
to the disposition of all Notes covered by each Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least five days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Notes is being filed and advising such
Holders that the distribution of Registrable Notes will be made in accordance
with the method elected by the Majority Holders of Notes that are Registrable
Notes; and (ii) furnish to each Holder of Registrable Notes, to counsel for the
Initial Purchaser, to counsel for the Holders and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and schedules
and, if the Holder so requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition of the
Registrable Notes; and (iii) subject to the last paragraph of this Section 3,
hereby consent to the use of the Prospectus, including each preliminary
Prospectus, or any amendment or supplement thereto by each of the selling
Holders of Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable Notes
shall reasonably request by the time the applicable Registration Statement is
declared effective by the SEC, cooperate with the Holders in connection with any
filings required to be made with the NASD, keep each such registration or
qualification effective during the period such Registration Statement is
required to be effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Notes owned by such
Holder; provided, however, that the Company shall not be required to (i) qualify
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as a foreign corporation or as a dealer in securities in any jurisdiction where
it would not otherwise be required to qualify but for this Section 3(d) or (ii)
take any action which would subject it to general service of process or taxation
in any such jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for such Holders promptly and, if requested by
such Holder or counsel, confirm such advice in writing promptly (i) when a Shelf
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company or any Guarantors
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to such offering cease to be true and
correct in all material respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the Company
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section covering
the use of the Prospectus included in the Exchange Offer Registration Statement
by broker-dealers who have exchanged their Registrable Notes for Exchange Notes
for the resale of such Exchange Notes, (ii) furnish to each broker-dealer who
desires to participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as such
broker-dealer may reasonably request, (iii) include in the Exchange Offer
Registration Statement a statement that any broker-dealer which holds
Registrable Notes acquired for its own account as a result of market-making
activities or other trading activities (a "Participating Broker-Dealer"), and
who receives Exchange Notes for Registrable Notes pursuant to the Exchange
Offer, may be a statutory underwriter and must deliver a Prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Notes, (iv) subject to the last paragraph of this Section 3, hereby consent to
the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto, by any broker-dealer in
connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (v) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
"If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Registrable Notes, it
represents that the Registrable Notes to be exchanged for Exchange Notes
were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of
such Exchange Notes pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the 1933
Act.";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the 1933 Act;
and
(B) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company and the Guarantors shall use their best
efforts to cause to be delivered at the request of an entity representing
the Participating Broker-Dealers (which entity shall be one of the Initial
Purchaser, unless it elects not to act as such representative) only one, if
any, "cold comfort" letter with respect to the Prospectus in the form
existing on the last date for which exchanges are accepted pursuant to the
Exchange Offer and with respect to each subsequent amendment or supplement,
if any, effected during the period specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company and the Guarantors shall use their best
efforts to maintain the
effectiveness of the Exchange Offer Registration Statement for a period of one
year following the closing of the Exchange Offer; and
(D) the Company and the Guarantors shall not be required to amend
or supplement the Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b) hereof, or
take any other action as a result of this Section 3(f), for a period
exceeding 180 days after the last date for which exchanges are accepted
pursuant to the Exchange Offer (as such period may be extended by the
Company) and Participating Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (A) in the case of an Exchange Offer or Shelf Registration
Statement, furnish counsel for the Initial Purchaser and (B) in the case of a
Shelf Registration, furnish counsel for the Holders of Registrable Notes copies
of any request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, and each underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends; and cause such Registrable Notes to be in such
denominations (consistent with the provisions of the Indenture) in a form
eligible for deposit with the Depository and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at least one
business day prior to the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, promptly upon the
occurrence of any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use their best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Notes, such Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such an event,
and each Holder hereby agrees to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Notes, or Registrable
Notes, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the Exchange
Notes or the Registrable Notes, as the case may be, in a form eligible for
deposit with the Depositary;
(m) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes, or Registrable Notes, as the case may be, (ii) cooperate with
the Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and (iii) execute, and use their best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions (including those reasonably requested by the Majority Holders of
Registrable Notes) in order to expedite or facilitate the disposition of such
Registrable Notes and in such connection whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Holders of such
Registrable Notes and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and its subsidiaries
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters,
if any, and the Holders of a majority in principal amount of the
Registrable Notes being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's and the Guarantors's independent certified public accountants
addressed to the underwriters, if any, and will use best efforts to have
such letter addressed to the selling Holders of Registrable Notes, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in connection
with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the appointment of
such agent for the selling
Holders for the purpose of soliciting purchases of Registrable Notes, which
agreement shall be in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and all other parties to
be indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if appropriate, each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company shall
provide written notice to the Holders of all Registrable Notes of such
underwritten offering at least 30 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 10 calendar days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes and any
underwriters participating in any disposition pursuant to a Shelf Registration
Statement and any counsel or accountant retained by such Holders or
underwriters, all financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors reasonably requested by any such
persons, and cause the respective officers, directors, employees, and any other
agents of the Company and the Guarantors to supply all information reasonably
requested by any such representative, underwriter, special counsel or accountant
in connection with such Registration Statement;
(p) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the Initial Purchaser, and make
such changes in any such document prior to the filing thereof as any of the
Initial Purchaser or its counsel may reasonably request; (ii) in the case of a
Shelf Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable Notes, to the Initial
Purchaser, to counsel on behalf of the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any, and make
such changes in any such document prior to the filing thereof as the Holders of
Registrable Notes, the Initial Purchaser on behalf of such Holders, its counsel
and any underwriter may reasonably request; and (iii) cause the representatives
of the Company and its subsidiaries to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable Notes,
the Initial Purchaser on behalf of such Holders or any underwriter and shall not
at any time make any filing of any such document of which such Holders, the
Initial Purchaser on behalf of such Holders, its counsel or any underwriter
shall not have previously
been advised and furnished a copy or to which such Holders, the Initial
Purchaser on behalf of such Holders, their counsel or any underwriter shall
reasonably object;
(q) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Notes to be listed on any securities exchange on which
similar debt securities issued by the Company are then listed if requested by
the Majority Holders of Registrable Notes or by the underwriter or underwriters
of an underwritten offering of such Registrable Notes, if any;
(r) in the case of a Shelf Registration, use their best efforts to
cause the Registrable Notes to be rated with the appropriate rating agencies, if
so requested by the Majority Holders of Registrable Notes or by the underwriter
or underwriters of an underwritten offering of Registrable Notes, if any, unless
the Registrable Notes are already so rated;
(s) otherwise use their best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including, any "qualified independent underwriter"
that is required to be retained in accordance with the rules and regulations of
the NASD).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Company such information regarding
such Holder and the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Notes current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(vi) hereof, the Company and the Guarantors shall be deemed to
have used their best efforts to keep the Shelf Registration Statement effective
during such period of suspension provided that the Company and the Guarantors
shall use their best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Notes
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall
--------------------------------
indemnify and hold harmless the Initial Purchaser, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Notes, their respective affiliates, and the respective directors,
officers, employees, agents and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Notes or Registrable
Notes were registered under the 1933 Act, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
5(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any court or governmental
agency or body, commenced or threatened in connection with, or any claim
whatsoever based upon, any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
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claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchaser, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto);
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Guarantors, the Initial Purchaser, each underwriter who participates in an
offering of Registrable Notes and the other selling Holders and each of their
respective directors and officers (including each officer of the Company and the
Guarantors who signed the Shelf Registration Statement) and each Person, if any,
who controls the Company, any Guarantors, the Initial Purchaser, any underwriter
or any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense whatsoever described in the indemnity contained in Section 5(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company and the Guarantors by such Holder, as the case may be, expressly
for use in the Shelf Registration Statement (or any amendment thereto), or the
Prospectus (or any amendment or supplement thereto); provided, however, that no
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such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Notes pursuant
to such Shelf Registration Statement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such person (the "indemnified party") shall give notice as
promptly as reasonably practicable to each person against whom such indemnity
may be sought (the "indemnifying party"), but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
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however, that counsel to the indemnifying party shall not (except with the
-------
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel, in addition to any local counsel, separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 hereof
(whether or not the indemnified parties are actual or potential parties
thereof), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party;
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which they are entitled to indemnification hereunder, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party for such fees and
expenses of counsel in accordance with such request prior to the date of such
settlement;
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
such indemnifying party or parties on the one hand, and such indemnified party
or parties on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand, and such indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantors and the Initial Purchaser and the Holders of the Registrable Notes
agree that it would not be just and equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if the Holders were
treated as one entity, and the Initial Purchaser were treated as one entity, for
such purpose) or by another method of allocation which does not take account of
the equitable considerations referred to above in Section 5. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 5 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by an governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each person, if any, who
controls the Initial Purchaser or a Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Initial Purchaser or Holder, and each director of the
Company or any Guarantors, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company or any
Guarantors
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company and such Guarantors.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the
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Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the reports required to be filed by
it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules
and regulations adopted by the SEC thereunder, that if it ceases to be so
required to file such reports, it will upon the request of any Holder of
Registrable Notes (i) make publicly available such information as is necessary
to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act and it will take such further action as any
Holder of Registrable Notes may reasonably request, and (iii) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable Notes
without registration under the 1933 Act within the limitation of the exemptions
provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from
time to time, or (z) any similar rules or regulations hereafter adopted by the
SEC. Upon the written request of any Holder of Registrable Notes, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. The Company and the Guarantors have
--------------------------
not entered into, and the Company and the Guarantors on or after the date of
this Agreement will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
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modification, supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(d) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder (other than the Initial Purchaser), at the most
current address set forth on the records of the Registrar under the Indenture,
(ii) if to the Initial Purchaser, at the most current address given by the
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Company or the Guarantors,
initially at the Company's address set forth in the Purchase Agreement and
thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, by recipient's telecopy operator, if telecopied; and on
the next business day if delivered to a courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
--------
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA.
(j) Appointment of Agent For Service. By the execution of this
--------------------------------
Agreement, each of Supreme Munsingwear Canada, Inc., Supreme International
Corporation de Mexico S.A. de C. V., BBI Retail LLC, and ▇▇▇▇▇▇▇ Apparel Corp.,
hereby designates the Company as its authorized agent upon which process may and
be served in any legal action or proceeding,
including with respect to any state or federal securities laws, that may be
instituted in any federal court of the United States or the court of any state
thereof and arising out of or relating to this Agreement. Service of process
upon such agent at ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall be deemed in every respect effective service of process
upon Supreme Munsingwear Canada, Inc., Supreme International Corporation de
Mexico, S.A. de C.V., BBI Retail LLC, and ▇▇▇▇▇▇▇ Apparel Corp. as applicable,
in any such legal action or proceeding and each of Supreme Munsingwear Canada,
Inc., Supreme International Corporation de Mexico, S.A. de C.V., BBI Retail LLC,
and ▇▇▇▇▇▇▇ Apparel Corp. hereby submits to the nonexclusive jurisdiction of any
such court in which any such legal action or proceeding is so instituted and
waives, to the extent it may effectively do so, any objection it may have now or
hereafter to the laying of the venue of any such legal action or proceeding.
Such appointment shall be irrevocable so long as the Initial Purchaser or the
Holders shall have any rights pursuant to the terms of this Agreement. Each of
Supreme Munsingwear Canada, Inc., Supreme International Corporation de Mexico,
S.A. de C.V., BBI Retail LLC, and ▇▇▇▇▇▇▇ Apparel Corp. further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of such agent.
(k) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President of Finance
SUPREME MUNSINGWEAR CANADA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SUPREME INTERNATIONAL CORPORATION DE
MEXICO, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
BBI RETAIL LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ APPAREL CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Confirmed and accepted as of
the date first above written:
By: FIRST UNION SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Vice President