Exhibit 4.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of October
22, 2004 of XXXXXXXXXX HERMANOS S.A., a sociedad anonima organized under the
laws of the Republic of Argentina (the "COMPANY"), Leitesol Industria e Comercio
S.A., a sociedade anonima de capital fechado duly organized and existing under
the laws of Brazil, Xxxxxxxxxx San Xxxx S.A., a sociedad anonima duly organized
and existing under the laws of Argentina, and Promas S.A., a sociedad anonima
duly organized and existing under the laws of Argentina, as subsidiary
guarantors (collectively, the "SUBSIDIARY GUARANTORS") for the benefit of the
holders of the Series A-1 8% Collateralized Senior Notes due 2012 ("SERIES A-1
NOTES") and the Series B-1 8% Collateralized Senior Notes due 2012 ("SERIES B-1
NOTES").
WHERAS, the Existing Notes have been issued by the Company pursuant an
offer to exchange described in the Offering Memorandum and Proxy Solicitation
Statement dated March 5, 2004, as supplemented by the Supplements dated April 2,
2004, May 10, 2004 and as replaced by the Offering Memorandum and Proxy
Solicitation dated 16, 2004 (the "OFFERING MEMORANDUM").
WHEREAS, the obligations of the Company under the Existing Notes are
guaranteed by the Subsidiary Guarantors (the "GUARANTEES") pursuant to the
Indenture.
WHEREAS, pursuant to the Offering Memorandum and Proxy Solicitation
Statement, the Company has committed to take actions with respect to effecting a
registered exchange offering with respect to the Existing Notes and, if required
as provided herein, a shelf registration with respect to the Existing Notes.
NOW THEREFORE, the Company and the Subsidiary Guarantors hereby agree as
follows for the holders of the Existing Notes:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
"ACTION" has the meaning set forth in Section 8(c) of this Agreement.
"BASE" means the Buenos Aires Stock Exchange (Bolsa de Comercio de Buenos
Aires).
"BROKER-DEALER" means any broker or dealer registered under the Exchange
Act.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day in the
City of New York or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
"CNV" means Comision Nacional de Valores, the Argentine Securities
Commission.
"COMMISSION" means the Securities and Exchange Commission.
"CONSUMMATION" of an Exchange Offer means the occurrence of (i) the filing
and effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) of this Agreement and (iii) the delivery by
the Company to the Registrar under the Indenture of New Notes (including the
guarantees thereon by the Subsidiary Guarantors) in the same aggregate principal
amount as the aggregate principal amount of Existing Notes tendered by the
Holders thereof pursuant to the Exchange Offer and not withdrawn. "CONSUMMATE,"
when used as a verb, has a correlative meaning.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in Section 5 of this
Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission pursuant thereto.
"EXCHANGE OFFER" means the registration under the Act by the Company of the
New Notes and the Guarantees by the Subsidiary Guarantors pursuant to a
Registration Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Existing Notes that are Transfer Restricted Securities held by such
Holders for New Notes in an aggregate principal amount equal to the aggregate
principal amount of the Existing Notes that are Transfer Restricted Securities
tendered in such exchange offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Registration Statement
relating to the Exchange Offer, including the related Prospectus.
"EXISTING NOTES" means the Company's Series A-1 Notes and Series B-1 Notes
to be issued pursuant to the Indenture on the Original Issue Date.
"GUARANTEES" has the meaning set forth in the preamble of this Agreement.
"HOLDERS" has the meaning set forth in Section 2(b) of this Agreement.
"INDEMNIFIED PERSON" has meaning set forth in Section 8(a) of this
Agreement.
"INDENTURE" means the Indenture, dated as of October 22, 2004, by and among
the Company, The Bank of New York, as trustee (the "TRUSTEE"), co-registrar and
principal paying agent, Banco Rio de la Plata S.A., as registrar and paying
agent and Collateral Agent and the Subsidiary Guarantors, pursuant to which the
Notes are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with its terms.
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"INTEREST PAYMENT DATE" has the meaning set forth in the Indenture and the
Notes.
"LOSSES" has the meaning set forth in Section 8(a) of this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"NEW NOTES" means the Company's Series A-2 Notes and the Series B-2 Notes.
"NOTES" means the Existing Notes and the New Notes.
"OFFERING MEMORANDUM" has the meaning set forth in the preamble of this
Agreement.
"ORIGINAL ISSUE DATE" means the date that the Existing Notes are issued
under the Indenture in consummation of the offer to exchange described in the
Offering Memorandum.
"PARTICIPATING BROKER-DEALER" has the meaning set forth in Section 6(a) of
this Agreement.
"PERSON" means an individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint-stock
company, trust, unincorporated organization or a government or other agency or
political subdivision thereof or other entity of any kind.
"PROSPECTUS" means the prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments and
supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
"REGISTRATION DEFAULT" has the meaning set forth in Section 5 of this
Agreement.
"REGISTRATION STATEMENT" means any registration statement of the Company
and the Subsidiary Guarantors relating to (a) an offering of New Notes pursuant
to an Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, that is
filed (including, with respect to the Exchange Offer, by way of a "confidential"
filing) pursuant to the provisions of this Agreement, and, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including pre- and post-effective amendments) and all exhibits and
material incorporated by reference or deemed to be incorporated by reference, if
any, therein.
"SERIES A-1 NOTES" has the meaning set forth in the preamble of this
Agreement.
"SERIES A-2 NOTES" means the Company's Series A-2 8% Collateralized Senior
Notes due 2012 to be issued pursuant to the Indenture or an indenture
substantially identical to the Indenture (i) in connection with the Exchange
Offer or (ii) upon the request of any Holder of Series A-1 Notes covered by the
Shelf Registration Statement, in exchange for such Series A-1 Notes and
evidencing the same debt as the Series A-1 Notes.
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"SERIES B-1 NOTES" has the meaning set forth in the preamble of this
Agreement.
"SERIES B-2 NOTES" means the Company's Series B-2 8% Collateralized Senior
Notes due 2012 to be issued pursuant to the Indenture or an indenture
substantially identical to the Indenture (i) in connection with the Exchange
Offer or (ii) upon the request of any Holder of Series B-1 Notes covered by the
Shelf Registration Statement, in exchange for such Series B-1 Notes and
evidencing the same debt as the Series B-1 Notes.
"SHELF FILING DEADLINE" has the meaning set forth in Section 4(a) of this
Agreement.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 4(a) of
this Agreement.
"SUBSIDIARY" means, with respect to any Person, any other Person of which a
majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or a combination thereof.
"SUBSIDIARY GUARANTORS" has the meaning set forth in the preamble of this
Agreement.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated pursuant thereto, all as in effect on the date of the
Indenture.
"TRANSFER RESTRICTED SECURITIES" means each Note until the earliest to
occur of (i) the date on which such Note (if an Existing Note) has been
exchanged by a person other than a Broker-Dealer for a New Note in the Exchange
Offer, (ii) following the exchange by a Broker-Dealer in the Exchange Offer of
such Note (if an Existing Note) for a New Note, the date on which such New Note
is sold to a purchaser who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Note (if an Existing Note)
has been effectively registered under the Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such Note (if an
Existing Note) could be resold pursuant to Rule 144 under the Act.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a registration
in which securities of the Company are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
Section 2. Securities Subject to this Agreement. (a) Transfer Restricted
Securities. The securities entitled to the benefits of this Agreement are the
Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "HOLDER") whenever such Person
beneficially owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer. (a) Unless, due to a change in
federal law or Commission policy after the date hereof, the Exchange Offer shall
not be permitted by applicable federal law or Commission policy, the Company
shall (and shall cause each Subsidiary Guarantor to) (i) cause to be filed
(including by way of a "confidential" filing) with the
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Commission on or prior to 90 days after the Original Issue Date, an Exchange
Offer Registration Statement, (ii) use its best efforts to cause such Exchange
Offer Registration Statement to be declared effective by the Commission on or
prior to 150 days after the Original Issue Date and (iii) use its best efforts
to consummate the Exchange Offer within 180 days after the Original Issue Date.
In connection with the foregoing, the Company shall (and shall cause each
Subsidiary Guarantor to) (A) file all pre-effective amendments to such Exchange
Offer Registration Statement as may be necessary to cause such Exchange Offer
Registration Statement to become effective, (B) if applicable, file a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act, (C) cause all necessary filings in connection with
the registration and qualification of the New Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (D) upon the effectiveness of such Registration Statement,
commence the Exchange Offer and use its best efforts to issue New Notes in
exchange for all Existing Notes tendered and not withdrawn prior to the
expiration of the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the New Notes to be offered in exchange for the
Existing Notes that are Transfer Restricted Securities and permitting resales of
New Notes held by Broker-Dealers as contemplated by Section 3(c) below. If,
after such Exchange Offer Registration Statement initially is declared effective
by the Commission, the Exchange Offer or the issuance of New Notes under the
Exchange Offer or the resale of New Notes received by Broker-Dealers in the
Exchange Offer as contemplated by Section 3(c) below is interrupted by any stop
order, injunction or other order or requirement of the Commission or any other
governmental agency or court, such Exchange Offer Registration Statement shall
be deemed not to have become effective for purposes of this Agreement during the
period that such interruption shall continue.
(b) The Company shall (and shall cause each Subsidiary Guarantor to) use
its best efforts to cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company shall (and
shall cause each Subsidiary Guarantor to) cause the Exchange Offer to comply
with all applicable federal and state securities laws. The Company shall only
offer to exchange New Notes for Existing Notes in the Exchange Offer. The
Company shall (and shall cause each Subsidiary Guarantor to) use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but not less than 20 Business Days after such effective date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer that holds Existing Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or any affiliate of the
Company), may exchange such Existing Notes pursuant to the Exchange Offer;
provided, however, that such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a prospectus meeting
the requirements of the Act in connection with any resales of the New Notes
received by such Broker-Dealer in the Exchange Offer. Such "Plan of
Distribution" section shall allow the use of such Prospectus by all Persons
subject to the
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prospectus delivery requirements of the Act, including Participating
Broker-Dealers, and shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company shall (and shall cause each Subsidiary Guarantor to) use its
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time. The
Company shall provide sufficient copies of the latest version of such Prospectus
to Broker-Dealers promptly upon request, and in no event later than one Business
Day after such request, at any time in order to facilitate such resales.
Section 4. Shelf Registration. (a) Shelf Registration. If (i) the Company
and the Subsidiary Guarantors are not required to file an Exchange Offer
Registration Statement or to Consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy or (ii) any Holder
of Transfer Restricted Securities shall notify the Company within 15 days after
the commencement of the Exchange Offer that such Holder (A) is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) may not resell the New Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus, and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) is a Broker-Dealer and holds Existing Notes
acquired directly from the Company or one of its affiliates, then the Company
and the Subsidiary Guarantors shall (x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT"), on or prior to the earliest to occur of (1) the 90th day after the
date on which the Company determines that it is not required to file the
Exchange Offer Registration Statement or (2) the 90th day after the date on
which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above (such earliest date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b) of this Agreement,
and (y) use its best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 90th day after the Shelf
Filing Deadline ( the "SHELF EFFECTIVENESS DEADLINE"). The Company shall (and
shall cause each Subsidiary Guarantor to) use its best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and 6(c) of this Agreement to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a) and to ensure that it conforms to the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a continuous period of (i) two years following
the date on which such Shelf Registration becomes effective under the Act
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or (ii) such shorter period that will terminate when all the Notes covered by
the Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 15 days after receipt of a request therefor, such
information as the Company or any Subsidiary Guarantor may reasonably request
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary prospectus included in such Shelf Registration Statement. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed to make
the information previously furnished to the Company by such Holder not
materially misleading.
Section 5. Liquidated Damages. If (i) the Exchange Offer Registration
Statement or the Shelf Registration Statement is not filed (including, with
respect to the Exchange Offer Registration Statement, by way of a "confidential"
filing) with the Commission on or prior to the date specified for such filing in
Section 3(a) or Section 4(a), respectively, of this Agreement, (ii) the Exchange
Offer Registration Statement or the Shelf Registration Statement has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in Section 3(a) or Section 4(a), respectively, of this Agreement
(the "EFFECTIVENESS TARGET Date"), (iii) the Exchange Offer has not been
Consummated and, if required, a Shelf Registration Statement with respect to the
Existing Notes is not declared effective on or prior to the 180th day following
the Original Issue Date or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or usable in connection with resales of Transfer Restricted Securities
during the periods required by this Agreement (each such event referred to in
clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company hereby agrees
to pay to each Holder of Transfer Restricted Securities additional interest
("LIQUIDATED DAMAGES") on the principal amount of the Notes (in addition to the
stated interest on the Notes) from and including the date on which any such
Registration Defaults have occurred to but excluding the date on which all such
Registration Defaults have been cured. Liquidated Damages will accrue at a rate
of 0.25% per annum during the 90-day period immediately following the occurrence
of any Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, provided that (x) no Liquidated Damages shall
accrue under the preceding clause (ii) in respect of the Exchange Offer
Registration Statement or the Shelf Registration Statement at any time at which
Liquidated Damages shall accrue under the preceding clause (i) in respect of the
Exchange Offer Registration Statement or the Shelf Registration Statement,
respectively, and (y) in no event shall such rate exceed 1.00% per annum. All
accrued Liquidated Damages shall be paid by the Company on each Interest Payment
Date in accordance with the provisions applicable to the payment of interest set
forth in the Indenture. Following the cure of all Registration Defaults relating
to any particular Transfer Restricted Securities, the accrual of Liquidated
Damages with respect to such Transfer Restricted Securities will cease.
All obligations of the Company set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer
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Restricted Security shall survive until such time as all such obligations with
respect to such Transfer Restricted Security shall have been satisfied in full.
Section 6. Registration Procedures. (a) Exchange Offer Registration
Statement. In connection with the Exchange Offer, the Company shall (and shall
cause each Subsidiary Guarantor to) comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply with all of
the following provisions:
(i) If, due to a change in law or Commission policy after the date
hereof, in the reasonable opinion of U.S. counsel to the Company, there is
a question as to whether the Exchange Offer is permitted by applicable
federal law or Commission policy, the Company hereby agrees to seek a
no-action letter or other favorable decision from the Commission allowing
the Company and the Subsidiary Guarantors to Consummate an Exchange Offer
for such Existing Notes. The Company hereby agrees to pursue the issuance
of such a no-action letter or favorable decision to the Commission level.
In connection with the foregoing, the Company hereby agrees (and agrees to
cause each Subsidiary Guarantor) to take all such other reasonable actions
as are requested by the Commission or otherwise required in connection with
the issuance of such no-action letter or decision, including without
limitation (A) participating in telephonic conferences with the Commission,
(B) delivering to the Commission an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company or any Subsidiary
Guarantor, prior to the Consummation of the Exchange Offer, a written
representation to the Company or such Subsidiary Guarantor (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of
the Company within the meaning of the Act, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with
any Person to participate in, a distribution of the New Notes to be issued
in the Exchange Offer and (C) it is acquiring the New Notes in its ordinary
course of business. Holders of Transfer Restricted Securities shall use
their best efforts to cooperate in the Company's or any Subsidiary
Guarantor's preparations for the Exchange Offer.
(iii) The Company and the Subsidiary Guarantors acknowledge that the
staff of the Commission has taken the position that any Broker-Dealer that
owns New Notes that were received by such Broker-Dealer for its own account
in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be
an "underwriter" within the meaning of the Act and must deliver a
prospectus meeting the requirements of the Act in connection with any
resale of such New Notes.
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The Company and the Subsidiary Guarantors also acknowledge that it is the
Commission staff's current position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the New Notes, without naming the Participating
Broker-Dealers or specifying the amount of New Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Act in connection with resales of New
Notes for their own accounts (other than a resale of an unsold allotment
resulting from the original offering of the Notes), so long as the Prospectus
otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf Registration
Statement is required by this Agreement, the Company shall (and shall cause each
Subsidiary Guarantor to) comply with all the provisions of Section 6(c) of this
Agreement and shall use its best efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution of such Transfer Restricted
Securities and, in connection therewith, the Company shall (and shall cause each
Subsidiary Guarantor to), as expeditiously as possible, prepare and file with
the Commission a Shelf Registration Statement relating to the registration on
any appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities within the time
periods and otherwise in accordance with the provisions of this Agreement.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit resales of Notes by Broker-Dealers), the
Company shall (and shall cause each Subsidiary Guarantor to):
(i) use its best efforts to keep such Registration Statement
continuously effective for the applicable time period required hereunder
and provide all requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall promptly
notify the Holders to suspend use of the Prospectus, and the Holders shall
suspend use of the Prospectus until the Company and the Subsidiary
Guarantors have made an appropriate amendment to such Registration
Statement (or caused the Prospectus to be supplemented by a Prospectus
Supplement), in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), the Company shall
(and shall cause each Subsidiary Guarantor to) use its best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such pre-effective and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 of this Agreement,
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or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act during the
applicable time period required hereunder and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act and the Exchange Act
applicable to the Company and the Subsidiary Guarantors with respect to the
disposition of all Transfer Restricted Securities covered by such
Registration Statement during such period in accordance with the intended
method or methods of distribution by the sellers of such securities set
forth in such Registration Statement as so amended or in such Prospectus as
so supplemented;
(iii) in the case of a Shelf Registration Statement, advise the
underwriter(s), if any, and each of the selling Holders promptly and, if
requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any prospectus supplement or post-effective amendment has
been filed and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating to such Registration Statement or Prospectus, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement to such Registration Statement or
Prospectus, as the case may be, or any document incorporated by reference
in such Registration Statement or Prospectus untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements in such Registration Statement
or Prospectus 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. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish to each of
the underwriter(s), if any, and each of the selling Holders, before filing
with the Commission, copies of any Registration Statement or any Prospectus
included in such Registration Statement or Prospectus or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such underwriter(s), if any, and such Holders for a period of at
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least five Business Days, and the Company and the Subsidiary Guarantors
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus,
as the case may be (including all such documents incorporated by
reference), to which any underwriter or any selling Holder shall reasonably
object within five Business Days after the receipt of such Registration
Statement or Prospectus;
(v) in connection with any Shelf Registration Statement and, in the
case of Participating Broker-Dealers, any Exchange Offer Registration
Statement, promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, (A)
provide copies of such document to the selling Holders (including
Participating Broker-Dealers, if any) and to the underwriter(s), if any,
(B) make the Company's representatives reasonably available for discussion
of such document and other customary due diligence matters; provided that
such discussion and due diligence shall be coordinated on behalf of the
selling Holders by one counsel designated by and on behalf of such selling
Holders and (C) include such information in such document prior to the
filing of such document as such selling Holders or underwriter(s), if any,
may reasonably request;
(vi) make available at reasonable times for inspection by the selling
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), if any, at the offices where
normally kept, during reasonable business hours, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and the Subsidiary Guarantors and cause its and their officers, directors
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness; provided, however, that any information that is designated
in writing by the Company or any Subsidiary Guarantor, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such selling Holders, underwriters, attorney or accountant,
unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying, obligation of
confidentiality. Each selling Holder, underwriter, attorney or accountant
requesting disclosure will agree that it will, upon learning that
disclosure of such information is sought in connection with a court
proceeding, give notice to the Company and allow it at its own expense to
undertake appropriate action to prevent disclosure of the information
deemed confidential;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly include in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment, if necessary, such information
as such selling Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price
being paid for Transfer Restricted Securities and any other terms of the
offering of the Transfer
11
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment; provided,
however, that the Company and the Subsidiary Guarantors shall not be
required to take any action pursuant to this Section 6(c)(vii) that would,
in the opinion of counsel for the Company, violate applicable law;
(viii) furnish to each underwriter, if any, and selling Holders,
without charge, at least one conformed copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference that are expressly
requested by such persons);
(ix) deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; the Company and the Subsidiary Guarantors
hereby consent to the use of the Prospectus and any amendment or supplement
to the Prospectus by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities in accordance with the terms thereof and
with U.S. federal securities laws and Blue Sky laws covered by the
Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings of
securities of this type) and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all as may be reasonably requested by any
Holder of Transfer Restricted Securities or the underwriter(s), if any, in
connection with any sale or resale of Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company shall (and
shall cause each Subsidiary Guarantor to):
(A) make such representations and warranties to the Holders of
such Transfer Restricted Securities and the underwriters, if any, with
respect to the business of the Company and its Subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any
of them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when customarily requested;
(B) use its best efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
underwriters, if any, and special counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each
12
selling Holder of Transfer Restricted Securities and each of the
underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters, if any, and special
counsel to Holders of Transfer Restricted Securities;
(C) use its best efforts to obtain customary "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company or any such subsidiary for which
financial statements and financial data is, or is required to be,
included in the Registration Statement), addressed to each selling
Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with underwritten offerings;
(D) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to
the selling Holders and the underwriters, if any, than those set forth
in Section 8 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Transfer Restricted Securities covered by such Shelf Registration
Statement and the underwriters, if any); and
(E) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities being sold and the underwriters,
if any, to evidence the continued validity of the representations and
warranties made pursuant to clause (A) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company or any
Subsidiary Guarantor.
If at any time the representations and warranties of the Company and the
Subsidiary Guarantors contemplated in clause (x)(A) above cease to be true
and correct, the Company shall so advise the underwriter(s), if any, and
each selling Holder promptly and, if requested by any of them, shall
confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification
(or exemption from such registration or qualification) of the Transfer
Restricted Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the selling Holders and underwriter(s), if
any, may reasonably request and do any and all other reasonable acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Registration Statement; provided, however, that the Company and the
Subsidiary Guarantors shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to
13
the service of process or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xii) if a Shelf Registration is filed pursuant to Section 4,
cooperate with the selling Holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be
sold, which certificates shall not bear any restrictive legends and shall
be in a form eligible for deposit with The Depository Trust Company; and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders
may reasonably request;
(xiii) in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business
Days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted Securities
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 of such Transfer Restricted Securities or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) of this
Agreement shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated in such Registration Statement or
Prospectus by reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted Securities,
the Registration Statement will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading and the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide
the Trustee under the Indenture with certificates for the Transfer
Restricted Securities that are in a form eligible for deposit with The
Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD;
14
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in regards to any Registration
Statement, and make generally available to its securityholders, as soon as
practicable, a consolidated earnings statement of the Company and its
subsidiaries meeting the requirements of Rule 158 of the Act (which need
not be audited) for the twelve-month period (A) commencing at the end of
any fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm commitment or reasonable best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xix) cause the Indenture or such other indenture for the New Notes to
be qualified under the TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, if applicable, in
connection therewith, cooperate with the Trustee and the Holders to effect
such changes to the Indenture, if any, as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its best efforts to cause the Trustee to execute, all
customary documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xx) use its best efforts to take any action, satisfy any condition or
do any thing (including the obtaining or effecting of any necessary
consent, approval, authorization, filing, license, recording or
registration and including further, without limitation, the making of all
filings with the CNV and the BASE and providing the CNV and the BASE with
all required documents) at any time required in accordance with applicable
Argentine laws and regulations, to be taken, fulfilled or done in order to
permit the Exchange Offer or the Shelf Registration Statement, as the case
may be, and, in general, to use its best efforts to ensure at all times the
validity, enforceability and performance of this Agreement.
In the case of a Shelf Registration Statement, the Company and each
Subsidiary Guarantor may require each Holder to furnish to the Company such
information as the Company may reasonably request, and the Company and the
Subsidiary Guarantors may exclude from such registration the New Notes of any
Holder who fails to furnish such information within a reasonable period of time
after receiving such request. Each Holder as to which any Shelf Registration is
being effected shall furnish promptly to the Company, upon its request, all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading. Each Holder
agrees by acquisition of a Transfer Restricted Security that, upon receipt of
any notice from the Company of the existence of any fact of the kind described
in Section 6(c)(iii)(D) of this Agreement, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) of this
Agreement, or until it is advised in writing (the "ADVICE") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company or any Subsidiary Guarantor, each
Holder will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies
15
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event that the Company or any Subsidiary Guarantor shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 of this Agreement, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(c)(iii)(D) of this Agreement to
and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) of this Agreement or, if no such
supplemented or amended Prospectus is required, when it shall have received the
Advice.
Section 7. Registration Expenses. All fees and expenses incident to the
Company's or any Subsidiary Guarantor's performance of or compliance with this
Agreement will be borne by the Company or such Subsidiary Guarantor regardless
of whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses (including
required filings made by the Holder with the NASD (and, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the NASD)); (ii)
all fees and expenses of compliance with U.S. federal securities and state Blue
Sky or securities laws or Argentine laws and regulations; (iii) all expenses of
printing (including printing certificates for the New Notes to be issued in the
Exchange Offer and printing of Prospectuses); (iv) all fees and disbursements of
counsel for the Company and, subject to Section 7(b) below, all reasonable fees
and disbursements of counsel for the Holders of Transfer Restricted Securities;
(v) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any comfort letters required by or
incident to such performance); and (vi) all fees and expenses of the Trustee and
any exchange agent and the fees and disbursements of its counsel.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
In connection with any Registration Statement required by this Agreement
(including, without limitation, the Shelf Registration Statement, but excluding
the Exchange Offer Registration Statement if no Transfer Restricted Securities
are resold pursuant to the "Plan of Distribution" contained therein), the
Company will reimburse the Holders of Transfer Restricted Securities resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Proskauer Rose LLP or such other counsel as may
be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Securities shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes sold by or on behalf of it.
16
Section 8. Indemnification. (a) Each of the Company and the Subsidiary
Guarantors agrees to indemnify and hold harmless (i) each Holder of Transfer
Restricted Securities and each Participating Broker-Dealer, (ii) each person, if
any, who controls any of the foregoing within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling person") and (iii)
the agents, employees, officers and directors of any Holder or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "INDEMNIFIED PERSON") from and against any and all losses,
liabilities, claims, damages and expenses whatsoever (including, but not limited
to, reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, "LOSSES")
to which they or any of them may become subject under the Act, the Exchange Act
or otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, preliminary prospectus or
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Subsidiary Guarantors will not be
liable in any such case to the extent, but only to the extent, that any such
Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Indemnified Person relating to such Indemnified Person expressly for use
therein. This indemnity agreement will be in addition to any liability that the
Company and the Subsidiary Guarantors may otherwise have, including, but not
limited to, liability under this Agreement.
(b) In connection with any Registration Statement pursuant to which a
Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Subsidiary Guarantors, their respective agents,
employees, officers and directors and any person controlling the Company and the
Subsidiary Guarantors within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, and the agents, employees, officers and directors of
such controlling person to the same extent as the foregoing indemnity from the
Company and the Subsidiary Guarantors to each Indemnified Person but only with
respect to, and to the extent that, any such Loss arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information relating to
such Holder furnished in writing to the Company by such Holder expressly for use
in such Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, suit or proceeding (collectively, an
"ACTION"), such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement of
such Action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have under this
Section 8 except to the extent that it has been prejudiced in any material
respect by such failure or from any liability
17
which it may otherwise have). In case any such Action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement of
such Action, the indemnifying party will be entitled to participate in such
Action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such Action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such Action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such Action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such Action
within a reasonable time after notice of commencement of the Action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
Action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of counsel shall be borne by the indemnifying parties. In
no event shall the indemnifying party be liable for the fees and expenses of
more than one counsel (together with appropriate local counsel) at any time for
all indemnified parties in connection with any one Action or separate but
substantially similar or related Actions arising out of the same general
allegations or circumstances. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or Action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in paragraphs (a) and (b) of this Section 8 is for
any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Company, the Subsidiary Guarantors and the Indemnified Persons shall contribute
to the aggregate Losses of the nature contemplated by such indemnification
provision (but after deducting in the case of Losses suffered by the
indemnifying party, any contribution received by the indemnifying party from
persons other than the Indemnified Person who may also be liable for
contribution, including persons who control the Indemnified Person within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) to which
the Company, the Subsidiary Guarantors and the Indemnified Persons may be
subject, in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors, on the one hand, and the
Indemnified Persons, on the other hand, from the offering of the Notes or, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in paragraph (c) of this Section 8, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Subsidiary Guarantors, on the one
hand, and the Indemnified Persons, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Subsidiary Guarantors, on the one hand, and the Indemnified Persons, on the
other hand, 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, the Subsidiary Guarantors or the Indemnified Persons and the parties'
relative intent,
18
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) Each of the Company and the Subsidiary Guarantors agrees that it would
not be just and equitable if contribution pursuant to paragraph (d) of this
Section 8 were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to above.
Notwithstanding the provisions of paragraph (d) of this Section 8, (i) in
no case shall an Indemnified Person be required to contribute any amount in
excess of the amount by which the total received by such Indemnified Person with
respect to its sale of its Transfer Restricted Securities or New Notes, as the
case may be, exceeds the amount of any damages that such Indemnified Person has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) 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 paragraphs (d) and (e) of this
Section 8, each person, if any, who controls an Indemnified Person within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Indemnified Person, and each person, if
any, who controls the Company and Subsidiary Guarantors, if applicable, within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as the Company and Subsidiary Guarantors,
if applicable, subject in each case to clauses (i) and (ii) of this Section
8(e). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any Action against such party in respect of which a claim for
contribution may be made against another party or parties under paragraph 8(d)
or (e) of this Section 8, notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under paragraph (d) or (e) of this Section 8 or
otherwise. No party shall be liable for contribution with respect to any Action
or claim settled without its written consent; provided, however, that such
written consent shall not be unreasonably withheld.
Section 9. Rule 144A. If at any time the Company is not required to file
reports under the Act and the Exchange Act, it agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner and to Broker-Dealers, upon their request, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
Section 10. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration under this Agreement unless such
Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the
basis provided in customary underwriting arrangements approved by the Persons
entitled under this Agreement to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorneys, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
19
Section 11. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering; provided that such investment bankers and
managers must be reasonably satisfactory to the Company.
Section 12. Miscellaneous. (a) Remedies. Each Holder, in addition to being
entitled to exercise all rights provided in this Agreement, in the Indenture or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. Each of the
Company and the Subsidiary Guarantors agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any Action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Subsidiary Guarantors
will not on or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions of this
Agreement. The Company and the Subsidiary Guarantors have not previously entered
into any agreement granting any registration rights with respect to its
respective securities to any Person, except as disclosed in the Offering
Memorandum or in the Offering Memorandum dated March 26, 1998 related to the
Existing Notes. The rights granted to the Holders under this Agreement do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date of
this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent of the
Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Securities, the Company will not take (nor permit any Subsidiary
Guarantor to take) any action, or permit any change to occur, with respect to
the Notes that would materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions of this Agreement may not be given unless (i) in the case of
Section 5 hereof and this Section 12(d)(i), the Company and the Subsidiary
Guarantors have obtained the written consent of each affected Holder of
outstanding Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Company and the Subsidiary Guarantors have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions of this Agreement that relates
exclusively to the rights of Holders whose securities are being sold or tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being sold or tendered
pursuant to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
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(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivering, first-class mail
(registered or certified, return receipt requested), telex, telecopier or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Subsidiary Guarantors, at:
Xxxxxxxxxx Hermanos S.A.
E. Xxxxxxx 000,
Xxxx 0, Xxxxxxx 000
X0000XXX Xxxxxx Xxxxx
Xxxxxxxxx
Telephone: (00) 00-0000-0000
Facsimile: (00) 00-0000-0000
Attention: Xxxxxxx Xxxxxxxx
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
Business Days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of the Company and the
Subsidiary Guarantors, including without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted Securities.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Submission to Jurisdiction. Each of the Company and the Subsidiary
Guarantors agrees to submit to the non-exclusive jurisdiction of the courts of
the State of New York and the
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United States Federal Courts sitting in the City of New York for the purposes of
any suit, action or proceeding arising out of or relating to this Agreement.
Each of the Company and the Subsidiary Guarantors hereby designates and appoints
CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent
to receive on its behalf service of all process in any proceedings in any court
sitting in New York, New York, such service being hereby acknowledged by the
Company and the Subsidiary Guarantors to be effective and binding service in
every respect. A copy of any such process so served shall be mailed by
registered mail to the Company and the Subsidiary Guarantors at the address
specified in Section 12(e) hereof, except that unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by the Company or the Subsidiary
Guarantors refuses to accept service, each of the Company and the Subsidiary
Guarantors hereby agrees that service upon it by mail shall constitute
sufficient notice. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the Holders to bring
proceedings against the Company or the Subsidiary Guarantors in the courts of
any other jurisdiction.
To the extent that the Company, the Subsidiary Guarantors or any of their
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of process, from attachment upon or prior to judgment, from
attachment in aid of execution of judgment, or from execution of judgment, or
from other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which the proceedings may at
any time be commenced, with respect to their obligations, liabilities or any
other matter under or arising out of or in connection with this Agreement, each
of the Company and the Subsidiary Guarantors, to the fullest extent permitted by
law, hereby irrevocably and unconditionally waives and agrees not to plead or
claim any such immunity and consents to such relief and enforcement.
Each of the Company and the Subsidiary Guarantors irrevocably waives the
right to demand that the plaintiff post a bond or guaranty or other similar
cautio indicatum solvi in any action or proceeding arising out of relating to
this Agreement against the Company or the Subsidiary Guarantors in Argentina.
(j) Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, each of the Company and the Subsidiary Guarantors
agrees, to the fullest extent that it may effectively do so, that the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Company could purchase United States dollars with such other
currency in New York City on the Business Day preceding that on which final
judgment is given. The obligation of the Company, the Subsidiary Guarantors and
any indemnifying party in respect of any amount payable pursuant to this
Agreement, shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first Business Day following receipt
by the Company, such Subsidiary Guarantor or the Indemnified Person, as the case
may be, of any sum adjudged to be so due in such other currency, on which (and
only to the extent that) the Company, the Subsidiary Guarantors or the
Indemnified Person, as the case may be, may in accordance with normal banking
procedures purchase United States dollars with such
22
other currency; if the United States dollars so purchased are less than the sum
originally due to the Company, the Subsidiary Guarantors or the Indemnified
Person, as the case may be, hereunder, the Company, the Subsidiary Guarantors
and such Indemnified Person agree, as a separate obligation and notwithstanding
any such judgment, to indemnify the Company, the Subsidiary Guarantors or the
Indemnified Person, as the case may be, against such loss. If the United States
dollars so purchased are greater than the sum originally due to the Company,
Subsidiary Guarantor or Indemnified Person, as the case may be, hereunder, the
Company, such Subsidiary Guarantor or the Indemnified Person, as the case may
be, agrees to pay to the Company, the Subsidiary Guarantor or the Indemnified
Person, as the case may be, an amount equal to the excess of the dollars so
purchased over the sum originally due to the Company, the Subsidiary Guarantor
or the Indemnified Person, as the case may be, hereunder.
All payments to be made by the Company or any Subsidiary Guarantors under
this Agreement shall be made in U.S. dollars, at such place outside of the
Republic of Argentina as agreed with the payee thereof, without withholding or
deduction for or on account of any present or future taxes, duties or charges
whatsoever imposed or levied by or on behalf of the Republic of Argentina or any
political subdivision or taxing authority therein, unless the Company or any
Subsidiary Guarantor is compelled by law to deduct or withhold such taxes,
duties or charges, in which event the Company or any Subsidiary Guarantor shall
pay such "additional amounts" as may be necessary in order that the net amounts
received by such payee (including "additional amounts") after any withholding in
respect of such taxes, duties or charges shall equal the amount that would have
been received in the absence of such withholding or deduction.
(k) Waiver of Immunity. To the extent that the Company or any Subsidiary
Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid or execution, or otherwise) with respect to
itself or its property, such party hereby irrevocably waives such immunity in
respect of its obligations hereunder to the extent permitted by applicable law
and, without limiting the generality of the foregoing, agrees that the waivers
set forth in this paragraph shall have effect to the fullest extent permitted
under the Foreign Sovereign Immunities Act of 1976 of the United States and are
intended to be irrevocable for purposes of such Act.
(l) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application of any such provision in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
(m) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties to this Agreement in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to in this Agreement with respect to the registration rights granted
by the Company and the Subsidiary Guarantors with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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(n) Beneficiaries. Holders are intended beneficiaries of this Agreement and
this Agreement may be enforced by such Holders. Any person who acquires Transfer
Restricted Securities will, as the Holder of such Transfer Restricted
Securities, automatically become a party to this Agreement.
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IN WITNESS WHEREOF, the Company and the Subsidiary Guarantors have executed
this Agreement as of the date first written above.
XXXXXXXXXX HERMANOS S. A.
By:
-------------------------------------
Name:
Title:
LEITESOL INDUSTRIA E COMERCIO S.A.
By:
-------------------------------------
Name:
Title:
XXXXXXXXXX SAN XXXX S. A.
By:
-------------------------------------
Name:
Title:
PROMAS S.A.
By:
-------------------------------------
Name:
Title:
