REGISTRATION RIGHTS AGREEMENT Dated as of September 25, 2009 Among DOLE FOOD COMPANY, INC. and THE GUARANTORS NAMED HEREIN as Issuers, and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC WELLS FARGO SECURITIES, LLC SCOTIA CAPITAL (USA)...
Exhibit 99.3
Dated as of September 25, 2009
Among
▇▇▇▇ FOOD COMPANY, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ FARGO SECURITIES, LLC
SCOTIA CAPITAL (USA) INC.
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ FARGO SECURITIES, LLC
SCOTIA CAPITAL (USA) INC.
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
8%% Senior Secured Notes due 2016
TABLE OF CONTENTS
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1.
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Definitions | 1 | ||||
2.
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Exchange Offer | 5 | ||||
3.
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Shelf Registration | 9 | ||||
4.
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Additional Interest | 11 | ||||
5.
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Registration Procedures | 12 | ||||
6.
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Registration Expenses | 21 | ||||
7.
|
Indemnification and Contribution | 22 | ||||
8.
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Rules 144 and 144A | 26 | ||||
9.
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Underwritten Registrations | 27 | ||||
10.
|
Miscellaneous | 27 | ||||
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This Registration Rights Agreement (this “Agreement”) is dated as of September 25,
2009, 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, ▇▇▇▇▇ FARGO SECURITIES, LLC, SCOTIA CAPITAL (USA) INC. and ▇▇▇▇▇▇▇, SACHS & CO., as initial
purchasers (collectively, 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 September 18, 2009 (the “Purchase
Agreement”), which provides for, among other things, the sale by the Company to the Initial
Purchasers of $325,000,000 aggregate principal amount of the Company’s 8% Senior Secured Notes due
2016 (the “Notes”) guaranteed on a senior subordinated secured 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.
Application. See Section 7(a) 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.
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.
FINRA: See Section 5(s) hereof.
Freely Tradable: With respect to a Note (and the related Guarantee), a Note (and the
related Guarantee) that at any time of determination, if it were not held by an affiliate (as
defined in Rule 405) of the Company, (i) may be resold to the public in accordance with Rule 144 or
any successor provision thereof (whether or not the Company has failed to file any reports under
the Exchange Act), (ii) does not bear any restrictive legends relating to the Securities Act and
(iii) does not bear a restricted CUSIP number.
Free Writing Prospectus: Means each free writing prospectus (as defined in Rule 405)
prepared by or on behalf of the Company or used or referred to by the Company in connection with
the sale of the Notes, the Exchange Notes or the Private Exchange Notes.
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 September 25, 2009, by and among the Company,
the Guarantors and Deutsche Bank Trust Company Americas, as Trustee (the “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: September 25, 2009, the date of original issuance of the Notes.
Issuers: See the introductory paragraphs hereto.
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 “issuer free writing prospectus” as
defined in Rule 433 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
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,
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(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,
is Freely Tradable.
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.
Registration Trigger Date: Means the fifth Business Day following the one-year
anniversary of the date hereof.
Regulatory Requirements: See the last paragraph of Section 1 hereof.
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, with respect to any Notes that on the Registration Trigger Date are
Registrable Notes, the Issuers shall use their respective reasonable best efforts to file with the
SEC 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 a senior subordinated basis
secured 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; (y)
keep the Exchange Offer open for at least 20 Business 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 45th day
following the effectiveness of the Exchange Offer Registration Statement.
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
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(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 (and related guarantees) 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
“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
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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 20 Business 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 Ex-
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change 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 on or prior to the 45th day following the Registration Trigger Date, (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. 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 (and the related
Guarantees) 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 90th day
following the delivery of the Shelf Notice and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is one year 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 Registration or, if applicable, a Subsequent Shelf Registration (the
“Effectiveness Period”); provided, however, that the Effectiveness
Period in
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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 Notes, Exchange Notes or Private Exchange Notes, as applicable,
covered by the Shelf Registration Statement become Freely Tradable. 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
twelve-month period (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 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
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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 (x) the Exchange Offer Registration Statement is not declared effective on or prior
to the Registration Trigger Date or (y) the Exchange Offer is not consummated within 45 days
after the Exchange Offer Registration Statement becomes effective, then Additional Interest
shall accrue on the principal amount of the Registrable Notes at a rate of 0.25% per annum
for the first 90 days immediately following the Registration Trigger Date or the 45th day
following the effective date of the Exchange Offer Registration Statement, as applicable,
and such Additional Interest rate shall increase by an additional 0.25% per annum at the
beginning of the immediately following 90-day period; or
(ii) if the Issuers are required to file a Shelf Registration Statement and such Shelf
Registration Statement is not declared effective by the SEC on or prior to the 90th day
following delivery of the Shelf Notice, then, commencing on the day after such 90th day,
Additional Interest shall accrue on the principal amount of the Notes at a rate of 0.25% 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 0.25% per annum at the
beginning of the immediately following 90-day period; or
(iii) if the Shelf Registration Statement required by Section 3(a) of this Agreement has
been declared effective but thereafter ceases to be effective at any time at which it is
required to be effective under this Agreement and such failure to remain effective exists
for more than the number of days permitted by the second paragraph of Section 3(a) hereof,
then commencing on the first day following the date on which such Shelf Registration
Statement ceases to be effective that exceeds the number of days permitted by the second
paragraph of Section 3(a) hereof, Additional Interest
shall accrue on the Registrable Notes at a rate of 0.25% per annum of the principal amount
of such Notes for the first 90 days from and including such day, as applicable, following
the date on which such Shelf Registration Statement ceases to be effective
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and increasing by
an additional 0.25% per annum at the beginning of each subsequent 90-day period thereafter;
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 1.00% per annum;
provided, further, however, that (1) upon the completion of the Exchange
Offer (in the case of clause (i) above of this Section 4), (2) upon the effectiveness of the Shelf
Registration Statement as required hereunder (in the case of clause (ii) of this Section 4), or (3)
upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in
the case of (iii)(B) of this Section 4), Additional Interest on the Registrable 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 February 15, and August 15 (to the holders
of record on the February 1 and August 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.
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
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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 subsequent 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 Reg-
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istrable
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 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
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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 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 para-
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graph 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 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.
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(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 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
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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 (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
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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 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 ap-
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plicable 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 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 Financial Industry Regulatory Authority, Inc. (the “FINRA”).
(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
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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 Exchange 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 fil-
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ing fees (including, without limitation, (A) fees with respect to filings required to be made with FINRA 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 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:
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(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; provided,
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. 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
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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 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 indemni-
-24-
fying 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 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
-25-
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 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 Securities 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 Securities 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 Securities 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.
-26-
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 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
-27-
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 hereunder 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.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
-28-
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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,
-29-
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 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.
-30-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| ▇▇▇▇ FOOD COMPANY, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE GUARANTORS NAMED IN SCHEDULE 1 ATTACHED HERETO |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing Agreement is hereby confirmed
and accepted as of the date
first above written.
and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ FARGO SECURITIES, LLC
SCOTIA CAPITAL (USA) INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ FARGO SECURITIES, LLC
SCOTIA CAPITAL (USA) INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
|
DEUTSCHE BANK SECURITIES INC. | |
| Acting on behalf of itself and as a representative | ||
| of the several Initial Purchasers |
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE
1
Guarantors1
| ▇▇▇▇’▇ | ||||
| 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% | ||
CB North, LLC |
California | 100% | ||
CB South, LLC |
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 Packaged Foods, LLC |
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% | ||
▇▇▇▇▇▇▇ Ranch, LLC |
California | 100% | ||
Oceanview Produce Company |
California | 100% | ||
Prairie Vista, Inc. |
California | 100% | ||
Rancho Manana, LLC |
California | 100% | ||
Royal Packing Co. |
California | 100% | ||
▇▇▇▇▇▇▇ Terminal Co. |
California | 100% | ||
Bananera Antillana (Colombia), Inc. |
Delaware | 100% |
| 1 | Company to confirm. |
| ▇▇▇▇’▇ | ||||
| Jurisdiction of | Ownership | |||
| Company | Organization | % | ||
Clovis Citrus Association |
Delaware | 100% | ||
Delphinium Corporation |
Delaware | 100% | ||
▇▇▇▇ ▇▇▇▇▇ Company, LLC |
Delaware | 100% | ||
▇▇▇▇ Europe Company |
Delaware | 100% | ||
▇▇▇▇ Foods Flight Operations, 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% | ||
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% | ||
M K 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% | ||
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. |
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% |
-2-