EXHIBIT 4.10
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 29, 2003
Among
▇▇▇▇ FOOD COMPANY, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
SCOTIA CAPITAL (USA) INC.,
FLEET SECURITIES, INC.,
▇▇▇▇▇▇▇, SACHS & CO.
and
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
as Initial Purchasers
7-1/4% Senior Notes due 2010
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TABLE OF CONTENTS
Page
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1. Definitions..........................................................................................1
2. Exchange Offer.......................................................................................5
3. Shelf Registration...................................................................................9
4. Additional Interest.................................................................................11
5. Registration Procedures.............................................................................13
6. Registration Expenses...............................................................................22
7. Indemnification and Contribution....................................................................23
8. Rules 144 and 144A..................................................................................27
9. Underwritten Registrations..........................................................................27
10. Miscellaneous.......................................................................................28
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of May 29, 2003, among ▇▇▇▇ FOOD COMPANY, INC., a Delaware corporation (the
"Company"), the subsidiaries of the Company listed on Schedule 1 hereto
(collectively, and together with any entity that in the future executes a
supplemental indenture pursuant to which such entity agrees to guarantee the
Notes (as hereinafter defined), the "Guarantors," and together with the Company,
the "Issuers") and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES
LLC, SCOTIA CAPITAL (USA) INC., FLEET SECURITIES, INC., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. and
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION as initial purchasers (the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated as of May
14, 2003 (the "Purchase Agreement"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of $400,000,000 aggregate
principal amount of the Company's 7-1/4% Senior Notes due 2010 (the "Notes")
guaranteed on an unsecured senior subordinated basis by the Guarantors (the
"Guarantees"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Notes. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
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Effectiveness Date: With respect to (i) the Exchange Offer Registration
Statement, the 180th day after the Issue Date and (ii) any Shelf Registration
Statement, the 90th day after the Filing Date with respect thereto; provided,
however, that if the Effectiveness Date would otherwise fall on a day that is
not a Business Day, then the Effectiveness Date shall be the next succeeding
Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: (A) If no Registration Statement has been filed by the
Company pursuant to this Agreement, the 90th day after the Issue Date; and (B)
in any other case (which may be applicable notwithstanding the consummation of
the Exchange Offer), the 90th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; provided, however, that if the Filing
Date would otherwise fall on a day that is not a Business Day, then the Filing
Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of May 29, 2003, by and among the
Company, the Guarantors, and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(o) hereof.
Issue Date: May 29, 2003, the date of original issuance of the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related Guarantees) as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange
Note (and the related Guarantees) upon original issuance thereof and at all
times subsequent thereto, until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and
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such Note, Exchange Note or such Private Exchange Note (and the related
Guarantees), as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes (and the related
Guarantees) that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note (and
the related Guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related Guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.
Registration Statement: Any registration statement of the Company that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and
the related Guarantees) filed with the SEC under the Securities Act, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating to a
Shelf Registration.
Shelf Suspension Period: See Section 3(a) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange Notes
(and the related Guarantees).
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or
any applicable interpretation of the staff of the SEC, the Issuers shall use
their respective reasonable best efforts to file with the SEC, no later than the
Filing Date, a Registration Statement (the "Exchange Offer Registration
Statement") on an appropriate registration form with respect to a registered
offer (the "Exchange Offer") to exchange any and all of the Registrable Notes
for a like aggregate principal amount of debt securities of the Company (the
"Exchange Notes"), guaranteed on an unsecured senior subordinated basis by the
Guarantors, that are identical in all material respects to the Notes, except
that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii)
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 Issue Date, and which
are entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply in all material respects with all applicable tender
offer rules and regulations under the Exchange Act and other applicable laws.
The Issuers shall (x) use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 30 days (or longer if required by applicable law) after the
date that notice of the Exchange Offer is mailed to Holders; and (z) consummate
the Exchange Offer on or prior to the 210th day following the Issue Date;
provided, however, that if such 210th day would otherwise fall on a day that is
not a Business Day, then such Exchange Offer must be consummated not later than
the next succeeding Business Day.
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Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the "distribution" (within the
meaning of the Securities Act) of the Exchange Notes in violation of the
provisions of the Securities Act; (iii) neither the Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is an "affiliate" (as defined in Rule 405) of the Company or, if it is an
affiliate of the Company, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and will
provide information to be included in the Shelf Registration Statement in
accordance with Section 5 hereof in order to have their Notes included in the
Shelf Registration Statement and benefit from the provisions regarding
Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the
actual knowledge of such Holder, any other Person receiving Exchange Notes from
such Holder is engaging in or intends to engage in a distribution of the
Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such
Holder has acquired the Registrable Notes as a result of market-making
activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act (including, but not limited to, the
prospectus delivery requirements thereunder) in connection with any resale of
the Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers, and the Company shall have no further
obligation to register Registrable Notes (other than Private Exchange Notes and
Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3
hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a
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"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
The Issuers shall use their respective reasonable best efforts
to keep the Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers, upon the request of the
Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Company, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted
by the CUSIP Service Bureau.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(2) use their respective reasonable best efforts to keep the
Exchange Offer open for not less than 30 days after the date that
notice of the Exchange Offer is mailed to Holders (or longer if
required by applicable law);
(3) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
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(4) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer and the
Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder so
accepted for exchange; provided that, in the case of any Notes held in
global form by a depositary, authentication and delivery to such
depositary of one or more replacement Notes in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuers; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, with such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA, and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange
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Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 210 days of the Issue Date; provided, however, that if such
210th day would otherwise fall on a day that is not a Business Day, then such
Exchange Offer must be consummated not later than the next succeeding Business
Day, (iii) the Initial Purchasers or any other holder of Private Exchange Notes
so requests in writing to the Company at any time after the consummation of the
Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act) and so notifies the Company
within 60 days after the consummation of the Exchange Offer, in the case of each
of clauses (i) to and including (iv) of this sentence, then the Issuers shall
promptly deliver to the Holders and the Trustee written notice thereof (the
"Shelf Notice") and shall file a Shelf Registration pursuant to Section 3
hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable file with the SEC a Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Notes (the "Initial Shelf Registration"). The Issuers
shall use their respective reasonable best efforts to file with the SEC
the Initial Shelf Registration on or prior to the applicable Filing
Date. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form (as reasonably determined by the Issuers) permitting
registration of such Registrable Notes for resale by Holders in the
manner or manners designated by them (including, without limitation,
one or more underwritten offerings). The Issuers shall not permit any
securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Issuers shall use their respective reasonable best efforts
to cause the Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep the
Initial Shelf Registration continuously effective under the Securities
Act until the date that is two years from the Issue Date or such
shorter period ending when all Registrable Notes covered by the Initial
Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Regis-
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tration or, if applicable, a Subsequent Shelf Registration (the
"Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended
to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and shall be subject to reduction to
the extent that the applicable provisions of Rule 144(k) are amended or
revised to reduce the two year holding period set forth therein.
Notwithstanding anything to the contrary in this Agreement, at any
time, the Company may delay the filing of any Initial Shelf
Registration Statement or delay or suspend the effectiveness thereof,
for a reasonable period of time, but not in excess of an aggregate of
60 days in any calendar year (a "Shelf Suspension Period"), if the
Board of Directors of the Company determines reasonably and in good
faith that the filing of any such Initial Shelf Registration Statement
or the continuing effectiveness thereof would require the disclosure of
non-public material information that, in the reasonable judgment of the
Board of Directors of the Company, would be detrimental to the Company
if so disclosed or would otherwise materially adversely affect a
financing, acquisition, disposition, merger or other material
transaction.
(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations.
If the Initial Shelf Registration or any Subsequent Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
Notes registered thereunder), the Issuers shall use their respective
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend such Shelf Registration
Statement in a manner to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes
covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (each, a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Issuers shall use their respective reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep
such subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or
any Subsequent Shelf Registration was previously continuously
effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the
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Securities Act, or if reasonably requested by the Holders of a majority
in aggregate principal amount of the Registrable Notes (or their
counsel) covered by such Registration Statement with respect to the
information included therein with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect
to the information included therein with respect to such underwriter.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the
Holders will suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuers
agree to pay, jointly and severally, as liquidated damages, additional interest
on the Notes ("Additional Interest") under the circumstances and to the extent
set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed on or prior to the
Filing Date applicable thereto or (B) notwithstanding that the Issuers
have consummated or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf Registration is
not filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of 0.50%
per annum for the first 90 days immediately following such applicable
Filing Date, and such Additional Interest rate shall increase by an
additional 0.50% per annum at the beginning of the immediately
following 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by the SEC on
or prior to the Effectiveness Date applicable thereto or (B)
notwithstanding that the Issuers have consummated or will consummate
the Exchange Offer, the Issuers are required to file a Shelf
Registration and such Shelf Registration is not declared effective by
the SEC on or prior to the Effectiveness Date applicable to such Shelf
Registration, then, commencing on the day after such Effectiveness
Date, Additional Interest shall accrue on the principal amount of the
Notes at a rate of 0.50% per annum for the first 90 days immediately
following the day after such Effectiveness Date, and such Additional
Interest rate shall increase by an additional 0.50% per annum at the
beginning of the immediately following 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 210th day after the Issue Date; provided,
however, that if such 210th day would otherwise fall on a day that is
not a Business Day, then such Exchange Offer must be con-
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summated not later than the next succeeding Business Day' or (B) if
applicable, a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on the
principal amount of the Notes at a rate of 0.50% per annum for the
first 90 days commencing on the (x) 211th day after the Issue Date, in
the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above, and such Additional Interest
rate shall increase by an additional 0.50% per annum at the beginning
of the immediately following 90-day period;
provided, however, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) - (iii) at any one time and at
no time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate 1.0% per annum; provided, further, however, that (1) upon the filing
of the applicable Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the exchange of the
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Notes in respect of which such events
relate as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue. Notwithstanding any other provision of this
Section 4, the Issuer shall not be obligated to pay Additional Interest provided
in Sections 4(a)(i)(B), 4(a)(ii)(B) or 4(a)(iii)(B) during a Shelf Suspension
Period permitted by Section 3(a) hereof.
(b) The Issuers shall notify the Trustee within one Business
Day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each June 15 and December 15 (to the
holders of record on the June 1 and December 1 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
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5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder each
of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable
Filing Date a Registration Statement or Registration Statements as
prescribed by Section 2 or 3 hereof, and use their respective
reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that if (1) such filing is pursuant to Section 3 hereof or (2)
a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom
the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement (with respect
to a Registration Statement filed pursuant to Section 3 hereof) or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in
each case at least five business days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, their counsel, or the managing underwriters, if
any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period, the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the
related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant
to Rule 424; and comply in all material respects with the provisions of
the Securities Act and the Exchange Act applicable to it with respect
to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the sub-
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sequent resale of any securities being sold by an Participating
Broker-Dealer covered by any such Prospectus. The Company shall be
deemed not to have used its reasonable best efforts to keep a
Registration Statement effective if the Company voluntarily takes any
action that would result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period unless such action is required by
applicable law or permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Company has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes (with respect to
a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true and correct in all
material respects, (iv) of the receipt by any Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in or
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amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of
the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use their respective reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their respective
reasonable best efforts to obtain the withdrawal of any such order at
the earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested during the Effectiveness Period by the managing
underwriter or underwriters (if any), the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering or any Participating
Broker-Dealer, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such Registration
Statement; provided, however, that the Issuers shall not be required to
take any action hereunder that would, in the opinion of counsel to the
Issuers, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof)
and to each such Participating Broker-Dealer who so requests (with
respect to any such Registration Statement) and to their respective
counsel and each managing underwriter, if any, at the sole expense of
the
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Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the
Company, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Issuers hereby consent to the use (other than
during any Shelf Suspension Period) of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Notes covered
by, or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use their respective reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, the managing underwriter or underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things reasonably necessary or advisable to enable
the
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disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer
shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
(subject to applicable requirements contained in the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.
(j) Use their respective reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes, except as may be required solely
as a consequence of the nature of such selling Holder's business, in
which case the Issuers will cooperate in all reasonable respects with
the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense
of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), any such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make
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the statements therein, in the light of the circumstances under which
they were made, not misleading.
(l) Use their respective reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement or the Exchange Notes, as the case may be, or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes, and take all such other actions
as are reasonably requested by the managing underwriter or underwriters
in order to expedite or facilitate the registration or the disposition
of such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuers (including any acquired
business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities similar to the Notes, and confirm the same in writing if and
when requested; (ii) obtain the written opinions of counsel to the
Issuers, and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered
in opinions reasonably requested in underwritten offerings; (iii)
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of the Issuers, or of any business acquired by the Issuers,
for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7 hereof
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(or such other provisions and procedures reasonably acceptable to
Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done
at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any Initial Purchaser, any
selling Holder of such Registrable Notes being sold (with respect to a
Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, or underwriter (any
such Initial Purchasers, Holders, Participating Broker-Dealers,
underwriters, attorneys, accountants or agents, collectively, the
"Inspectors"), upon written request, at the offices where normally
kept, during reasonable business hours, all pertinent financial and
other records, pertinent corporate documents and instruments of the
Company and subsidiaries of the Company (collectively, the "Records"),
as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company and any of its subsidiaries to
supply all information ("Information") reasonably requested by any such
Inspector in connection with such due diligence responsibilities. Each
Inspector shall agree in writing that it will keep the Records and
Information confidential and that it will not disclose any of the
Records or Information that the Company determines, in good faith, to
be confidential and notifies the Inspectors in writing are confidential
unless (i) the disclosure of such Records or Information is necessary
to avoid or correct a misstatement or omission in such Registration
Statement or Prospectus, (ii) the release of such Records or
Information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such Records or
Information is necessary or advisable, in the opinion of counsel for
any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or
involving this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder, or
(iv) the information in such Records or Information has been made
generally available to the public other than by an Inspector or an
"affiliate" (as defined in Rule 405) thereof; provided, however, that
prior notice shall be provided as soon as practicable to the Company of
the potential disclosure of any information by such Inspector pursuant
to
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clauses (i) or (ii) of this sentence to permit the Company to obtain a
protective order (or waive the provisions of this paragraph (o)) and
that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes; and
in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes (if any) to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use their respective reasonable best efforts to cause
such trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely
manner.
(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders with regard to any applicable Registration Statement, a
consolidated earning statement satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after
the end of any fiscal quarter (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company, after the effective
date of a Registration Statement, which statements shall cover said
12-month periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, if requested by the Holders of a majority in principal amount
of the Notes, obtain an opinion of counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or Private Exchange Notes, as the case may be, the
related guarantee and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms, subject to customary exceptions
and qualifications. If the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by Holders to
the Company (or to such other Person as directed by the Company), in
exchange for the Exchange Notes
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or the Private Exchange Notes, as the case may be, the Issuers shall
▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be; in no event
shall such Registrable Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(t) Use their respective reasonable best efforts to take all
other steps necessary to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request and the failure to include any such seller shall not be
deemed to be a default hereunder. Each seller as to which any Shelf Registration
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of any Issuer, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuers, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company of a Shelf Suspension Period
or the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such Registration Statement or
Prospectus or Ex-
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change Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until the end of such Shelf Suspension Period or such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Issuers shall give any such notice,
each of the Applicable Period and the Effectiveness Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Company,
whether or not the Exchange Offer Registration Statement or any Shelf
Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers and, in the case of a Shelf Registration, reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable Notes
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by the
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Issuers, (viii) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing
legal or accounting duties), (ix) the expense of any annual audit, (x) any fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary in this Agreement, each Holder shall pay all underwriting discounts and
commissions of any underwriters with respect to any Registrable Notes sold by or
on behalf of it.
7. Indemnification and Contribution. (a) Each of the Issuers
agree jointly and severally, to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, and each Person, if any, who controls such Person
or its affiliates within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, a "Participant") against any losses, claims, damages or
liabilities to which any Participant may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
any Issuer contained in any application or any other document or any
amendment or supplement thereto executed by any Issuer based upon
written information furnished by or on behalf of any Issuer filed in
any jurisdiction in order to qualify the Notes under the securities or
"Blue Sky" laws thereof or filed with the SEC or any securities
association or securities exchange (each, an "Application");
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or
any preliminary prospectus; or
(iii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading;
and will reimburse, as incurred, the Participant for any legal
or other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; pro-
-24-
vided, however, none of the Issuers will be liable in any such case to the
extent that any such loss, claim, damage, or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
or Application or any amendment or supplement thereto in reliance upon and in
conformity with information relating to any Participant furnished to the Issuers
by such Participant specifically for use therein and provided, further, that
with respect to any untrue statement or omission or alleged untrue statement or
omission made in the prospectus, or any amendment or supplement thereto, or any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
contained in this Section 7 shall not inure to the benefit of any Participant
from whom the Person asserting any such loss, claim, damage or liability
purchased the Notes concerned to the extent that a prospectus relating to such
Notes was required to be delivered to such Person, and there was not given or
sent to such Person, at or prior to the written confirmation of the sale of such
Notes to such Person, a copy of the final prospectus (in the case of any such
preliminary prospectus) or a prospectus supplement (in any other case) if the
Company had previously furnished copies thereof to such Participant, and such
untrue statement or omission or alleged untrue statement or omission was
corrected in such final prospectus or prospectus amendment or supplement. The
indemnity provided for in this Section 7 will be in addition to any liability
that the Issuers may otherwise have to the indemnified parties. The Issuers
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their prior written consent, which shall not be
unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to
indemnify and hold harmless the Issuers, their directors, their officers and
each person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any reasonable legal or other expenses incurred by the Issuers or any
such director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to
-25-
any liability that the Participants may otherwise have to the indemnified
parties. The Participants shall not be liable under this Section 7 for any
settlement of any claim or action effected without their consent, which shall
not be unreasonably withheld. The Issuers shall not, without the prior written
consent of such Participant, effect any settlement or compromise of any pending
or threatened proceeding in respect of which such Participant is or could have
been a party, or indemnity could have been sought hereunder by such Participant,
unless such settlement (A) includes an unconditional written release of such
Participant, in form and substance reasonably satisfactory to such Participant,
from all liability on claims that are the subject matter of such proceeding and
(B) does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of such Participant.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall
-26-
have employed separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by Participants who
sold a majority in interest of the Registrable Notes and Exchange Notes sold by
all such Participants in the case of paragraph (a) of this Section 7 or the
Issuers in the case of paragraph (b) of this Section 7, representing the
indemnified parties under such paragraph (a) or paragraph (b), as the case may
be, who are parties to such action or actions) or (ii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. All fees and expenses reimbursed pursuant
to this paragraph (c) shall be reimbursed as they are incurred. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 7,
in which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and such Participant on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
of the Notes received by the Company bear to the total net profit received by
such Participant in connection with the sale of the Notes. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand, or the Participants on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution
-27-
were determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), no Participant shall be obligated to make
contributions hereunder that in the aggregate exceed the total net profit
received by such Participant in connection with the sale of the Notes, less the
aggregate amount of any damages that such Participant has otherwise been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Participant within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Participants, and each director of the Issuers, each officer of the Issuers
and each person, if any, who controls the Issuers within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.
8. Rules 144 and 144A
The Issuers covenant and agree that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Company or any Guarantor is not required to file such
reports, the Company or such Guarantor, as the case may be, will, upon the
request of any Holder or beneficial owner of Registrable Notes, make available
such information necessary to permit sales pursuant to Rule 144A. The Issuers
further covenant and agree, for so long as any Registrable Notes remain
outstanding that they will take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144(k)
under the Securities Act and Rule 144A.
9. 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 Holders of a majority in aggregate principal amount 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
-28-
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.
10. Miscellaneous
(a) No Inconsistent Agreements. None of the Issuers has, as of
the date hereof, and none of the Issuers shall, after the date of this
Agreement, enter into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable 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 Issuers' other issued
and outstanding securities under any such agreements. None of the Issuers will
enter into any agreement with respect to any of their securities that will grant
to any Person piggy-back registration rights with respect to any Registration
Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of (I) the Issuers, and (II)(A) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted here-
-29-
under shall be made in writing by hand-delivery, registered first-class mail,
next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (212) [ ]-[ ]
Attention: Corporate Finance Department
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Initial Purchasers, at the address specified in
Section 10(d)(i);
(iii) if to the Issuers, at the address as follows:
▇▇▇▇ Food Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in
-30-
the mail, postage prepaid, if mailed; one Business Day after being timely
delivered to a next-day air courier; and upon written confirmation, if sent by
facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuers or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or their
affiliates (as such term is defined in Rule 405 under
-31-
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
▇▇▇▇ FOOD COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Chief Financial
Officer
THE GUARANTORS NAMED IN SCHEDULE 1 ATTACHED HERETO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. Hannery
-----------------------------
Name: ▇▇▇▇▇ ▇. Hannery
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Managing Director
SCOTIA CAPITAL (USA) INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
-----------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.)
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-2-
SCHEDULE 1
Guarantors
▇▇▇▇'▇
JURISDICTION OF OWNERSHIP
COMPANY ORGANIZATION %
------- ------------ ---------
Calazo Corporation Arizona 100%
AG 1970, Inc. California 100%
AG 1971, Inc. California 100%
AG 1972, Inc. California 100%
Alyssum Corporation California 100%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Corporation California 100%
▇▇▇ ▇▇▇▇▇, Inc. California 100%
Calicahomes, Inc. California 100%
California Polaris, Inc. California 100%
Dole ABPIK, Inc. California 100%
Dole Arizona Dried Fruit and Nut Company California 100%
Dole Carrot Company California 100%
Dole Citrus California 100%
Dole DF&N, Inc. California 100%
Dole Dried Fruit and Nut Company, a California General Partnership California 100%
Dole Farming, Inc. California 100%
Dole Fresh Vegetables, Inc. California 100%
▇▇▇▇ ▇▇▇▇▇▇, Inc. California 100%
Dole Visage, Inc. California 100%
E. T. Wall Company California 100%
Earlibest Orange Association, Inc. California 100%
Fallbrook Citrus Company, Inc. California 100%
Lindero Headquarters Company, Inc. California 100%
Lindero Property, Inc. California 100%
Oceanview Produce Company California 100%
Prairie Vista, Inc. California 100%
Royal Packing Co. California 100%
▇▇▇▇▇▇▇ Terminal Co. California 100%
Bananera Antillana (Colombia), Inc. Delaware 100%
Clovis Citrus Association Delaware 100%
Delphinium Corporation Delaware 100%
Dole Europe Company Delaware 100%
▇▇▇▇ Foods Flight Operations, Inc. Delaware 100%
▇▇▇▇ Fresh Flowers, Inc. Delaware 100%
Dole Northwest, Inc. Delaware 100%
Dole Sunfresh Express, Inc. Delaware 100%
Standard Fruit and Steamship Company Delaware 100%
Standard Fruit Company Delaware 100%
Sun Country Produce, Inc. Delaware 100%
West Foods, Inc. Delaware 100%
Cool Advantage, Inc. Florida 100%
Cool Care, Inc. Florida 100%
Flowernet Inc. Florida 100%
Saw Grass Transport, Inc. Florida 100%
Blue Anthurium, Inc. Hawaii 100%
Cerulean, Inc. Hawaii 100%
Dole Diversified, Inc. Hawaii 100%
Dole Land Company, Inc. Hawaii 100%
Dole Packaged Foods Corporation Hawaii 100%
La Petite d'Agen, Inc. Hawaii 100%
MK Development, Inc. Hawaii 100%
Malaga Company, Inc. Hawaii 100%
Muscat, Inc. Hawaii 100%
Oahu Transport Company, Limited Hawaii 100%
Wahiawa Water Company, Inc. Hawaii 100%
Waialua Sugar Company, Inc. Hawaii 100%
Zante Currant, Inc. Hawaii 100%
Diversified Imports Co. Nevada 100%
Dole Assets, Inc. Nevada 100%
Dole Fresh Fruit Company Nevada 100%
Dole Holdings, Inc. Nevada 100%
Dole Logistics Services, Inc. Nevada 100%
Dole Ocean Cargo Express, Inc. (DOCE) Nevada 100%
Dole Ocean Liner Express, Inc. Nevada 100%
Renaissance Capital Corporation Nevada 100%
Sun Giant, Inc. Nevada 100%
DNW Services Company Washington 100%
Pacific Coast Truck Company Washington 100%
Pan-Alaska Fisheries, Inc. Washington 100%