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EXHIBIT 4.3
FRESH FOODS, INC.
$115,000,000
10 3/4% SENIOR NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
Charlotte, North Carolina
June 9, ▇▇▇▇
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As Initial Purchasers under the Purchase Agreement
c/o First Union Capital Markets
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Ladies and Gentlemen:
This Registration Rights Agreement is dated as of June 9, 1998
(the "Agreement"), by and among Fresh Foods, Inc., a North Carolina corporation
(the "Issuer"), and each of the subsidiaries of the Company listed on the
signature pages hereto (collectively, the "Guarantors") and First Union Capital
Markets, a division of Wheat First Securities, Inc. and BancAmerica ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (together, the "Initial Purchasers").
This Agreement is being entered into in connection with a
certain purchase agreement, dated June 4, 1998, by and among the Issuer, the
Guarantors and the Initial Purchasers (the "Purchase Agreement"), which provides
for the issuance and sale (the "Initial Placement") by the Issuer to the Initial
Purchasers of $115,000,000 aggregate principal amount of the Issuer's 10 3/4%
Senior Notes Due 2006 (the "Notes"). The Notes are to be unconditionally
guaranteed, on a senior, unsecured basis (the "Note Guarantees"), by the
Guarantors. In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuer has agreed to provide the registration rights set forth in
this Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to purchase the Notes
under the Purchase Agreement. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
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"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person. For purposes of this
definition, "control" of a person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such person
whether by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of Charlotte, North Carolina
or New York, New York or is a day on which banking institutions located therein
are authorized or required by law or other governmental action to close.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Issuer's acceptance for exchange of
all Registrable Notes duly tendered and not validly withdrawn pursuant to the
Registered Exchange Offer and (d) the delivery by the Issuer to the Registrar
under the Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Registrable Notes tendered by Holders thereof
pursuant to the Registered Exchange Offer. The term "Consummation" has a meaning
correlative to the foregoing.
"Credit Agreement" means the Credit Agreement, dated as of the
date hereof, by and among the Company, the Guarantors, the lenders named therein
and First Union Commercial Corporation, as administrative agent.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Issuer identical
in all material respects to the Notes (except that the Liquidated Damages
provisions and the transfer restrictions pertaining to the Notes will be
modified or eliminated, as appropriate), to be issued under the Indenture.
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"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided, however,
that in the event that all resales of Exchange Notes (including, subject to the
time periods set forth herein, any resales by Exchanging Dealers) covered by
such Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration
statement of the Issuer on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Notes.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" means any holder from time to time of Registrable
Notes (including the Initial Purchasers).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of the Closing Date, among the Issuer, the
Guarantors and State Street Bank and Trust Company, as trustee, as the same may
be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof. The Indenture shall include the provisions of
the Trust Indenture Act that are deemed to be part of and govern the indenture.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Issuer" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 4
hereto.
"Losses" has the meaning set forth in Section 7(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Registrable Notes registered under a Registration
Statement.
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"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Note Guarantees" has the meaning set forth in the preamble
hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
principal amount of Exchange Notes.
"Registrable Notes" means each Note upon original issuance of
the Notes and, at all times subsequent thereto, each Exchange Note as to which
clauses (iii), (iv) or (v) of the first paragraph of Section 3 hereof are
applicable upon original issuance and at all times subsequent thereto, until in
the case of any such Note or Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which clauses (iii), (iv) or (v) of the first paragraph of Section 3
hereof are applicable, the Exchange Registration Statement) covering such Note
or Exchange Note, as the case may be, has been declared effective by the SEC and
such Note (unless such Note was not tendered for exchange by the Holder thereof)
or Exchange Note, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Note or Exchange Note, as the
case may be, is sold in compliance with Rule 144, or (iii) such Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Notes (including any Note Guarantees of each thereof) pursuant to the provisions
of this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Issuer pursuant to the provisions of Section 3 hereof, which
covers some or all of the Registrable Notes,
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as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Shelf Registration Trigger Date" means the date on which the
filing of a Shelf Registration is requested or required under Section 3 hereof
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
"Underwriter" means any underwriter of Registrable Notes in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Notes by
Exchanging Dealers; Private Exchange. (a) The Issuer and the Guarantors shall
prepare and, not later than 30 days from the date of original issuance of the
Notes (or, if such 30th day is not a Business Day, by the first Business Day
thereafter), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Issuer and the
Guarantors shall use their best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Act within 150 days
from the date of original issuance of the Notes (or, if such 150th day is not a
Business Day, by the first Business Day thereafter), and (ii) to Consummate the
Registered Exchange Offer within 30 Business Days from the date the Exchange
Offer Registration Statement becomes effective.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer and the Guarantors shall promptly commence and Consummate
the Registered Exchange Offer. The objective of such Registered Exchange Offer
is to enable each Holder electing to exchange Registrable Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Issuer or the
Guarantors within the meaning of the Act, (y) is not a broker-dealer that
acquired the Registrable Notes in a transaction other than as a part of its
market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to participate
in the distribution of the Exchange Notes) to resell such Exchange Notes from
and after their receipt without any limitations or restrictions under the Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuer and the Guarantors shall:
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(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance
for not less than 20 Business Days after the date notice thereof is
mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Issuer and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any three-month period or for
three periods not to exceed an aggregate of 90 days in any twelve-month period
for valid business reasons, to be determined by the Issuer and the Guarantors in
their sole reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided, that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Issuer and the Guarantors shall cause the Trustee
promptly to authenticate and deliver to each Holder Exchange Notes equal in
principal amount to the Registrable Notes of such Holder so accepted for
exchange.
(f) The Initial Purchasers, the Issuer and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in connection with a
sale of any Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Registrable Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Issuer and the Guarantors shall:
(i) include the information set forth in Annex A hereto on
the cover of the Prospectus forming a part of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the prospectus
included therein by Exchanging Dealers in connection with
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sales of Exchange Notes received pursuant to the Registered Exchange
Offer, as contemplated by Section 5(h) below.
(g) In the event that either Initial Purchaser determines that
it is not eligible to participate in the Registered Exchange Offer with respect
to the exchange of Registrable Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of either Initial Purchaser,
the Issuer and the Guarantors shall issue and deliver to the Initial Purchasers,
or to the party purchasing Registrable Notes registered under the Shelf
Registration Statement from the Initial Purchasers, in exchange for such
Registrable Notes, a like principal amount of Exchange Notes. The Issuer and the
Guarantors shall use their best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such Exchange Notes as for Exchange Notes issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, any of the Issuer
or the Guarantors determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) the Registered Exchange Offer is not Consummated within 30
Business Days from the date the Exchange Offer Registration Statement becomes
effective (or, if such 30th day is not a Business Day, by the first Business Day
thereafter), or (iii) either Initial Purchasers so requests with respect to
Registrable Notes held by it as a result of the purchase of such Registrable
Notes directly from the Issuer and the Guarantors following Consummation of the
Registered Exchange Offer and such Initial Purchaser is not eligible to receive
Exchange Notes pursuant to the Registered Exchange Offer in respect of such
Registrable Securities, or (iv) any Holder (other than the Initial Purchasers)
is not eligible to participate in the Registered Exchange Offer or the Exchange
Notes such Holder would receive in the Registered Exchange Offer could only be
reoffered and resold by such Holder upon compliance with the registration and
prospectus delivery requirements of the Act and the delivery of the Prospectus
contained in the Exchange Offer Registration Statement, as appropriately
amended, is not a legally available alternative, or (v) in the case where either
Initial Purchaser participates in the Registered Exchange Offer or acquires
Exchange Notes pursuant to Section 2(g) hereof, such Initial Purchaser does not
receive freely tradable Exchange Notes in exchange for Notes constituting any
portion of an unsold allotment (it being understood that, for purposes of this
Section 3, (x) the requirement that the Initial Purchasers deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Notes acquired in exchange
for such Registrable Notes shall result in such Exchange Notes being not "freely
tradable" and (y) the requirement that an Exchanging Dealer deliver a Prospectus
in connection with sales of Exchange Notes acquired in the Registered Exchange
Offer in exchange for Registrable Notes acquired as a result of market-making
activities or other trading activities shall not result in such Exchange Notes
being not "freely tradable"), the following provisions shall apply:
(a) The Issuer and the Guarantors shall prepare, and not later
than 30 days following the Shelf Registration Trigger Date (or, if such 30th day
is not a Business Day, by the first Business Day thereafter), shall file with
the Commission and thereafter, but not later than 150 days following the Shelf
Registration Trigger Date (or, if such 150th day is not a Business
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Day, by the first Business Day thereafter), shall use their best efforts to
cause to be declared effective under the Act a Shelf Registration Statement
relating to the offer and sale of the Registrable Notes by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement, provided, that with respect
to Exchange Notes received by the Initial Purchasers in exchange for Notes
constituting any portion of an unsold allotment, the Issuer and the Guarantors
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Issuer and the Guarantors shall use their best efforts
to keep such Shelf Registration Statement continuously effective in order to
permit the Prospectus forming a part thereof to be usable by Holders until the
earliest of (i) the second anniversary of the date on which the filing of a
Shelf Registration Statement was required or requested pursuant to this Section
3, (ii) the date on which the Registrable Notes may be sold pursuant to Rule
144(k) (or any successor provision) promulgated by the Commission under the Act
and (iii) such date as of which all the Registrable Notes have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Issuer and the Guarantors
shall be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if any of them
voluntarily takes any action that would result in Holders of Registrable Notes
covered thereby not being able to offer and sell such notes during that period,
unless such action is (x) required by applicable law or (y) pursuant to Section
3(c) hereof, and, in either case, so long as the Issuer or the Guarantors
promptly thereafter comply with the requirements of Section 5(k) hereof, if
applicable.
(c) The Issuer and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any three-month period or for
three periods not to exceed an aggregate of 90 days in any twelve-month period
for valid business reasons, to be determined by the Issuer and the Guarantors in
their sole reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided, that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(d) No Holder of Registrable Notes may include any of its
Registrable Notes in any Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Issuer in writing, within 20
Business Days after receipt of a request therefor, such information as the
Issuer may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Registrable Notes shall be entitled to Liquidated Damages pursuant to Section 4
hereof unless and until such Holder shall have used its best efforts to provide
all such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees
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to furnish promptly to the Issuer all information required to be disclosed in
order to make the information previously furnished to the Issuer by such Holder
not misleading.
4. Liquidated Damages.
(a) The parties hereto agree that the Holders of the Exchange
Notes or the Registrable Notes, as the case may be, will suffer damages, and
that it would not be feasible to ascertain the extent of such damages with
precision, if (i) either the Exchange Offer Registration Statement or the Shelf
Registration Statement has not been filed on or prior to the date specified for
such filing in this Agreement, (ii) the Exchange Offer Registration Statement or
the Shelf Registration Statement has not been declared effective under the Act
on or prior to the target date specified for such effectiveness in this
Agreement (the "Effectiveness Target Date"), (iii) the Registered Exchange Offer
has not been Consummated within 30 Business Days after the Effectiveness Target
Date with respect to the Exchange Offer Registration Statement, (iv) prior to
the end of the Exchange Offer Registration Period or the Shelf Registration
Period, the Commission shall have issued a stop order suspending the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, or proceedings have been initiated
with respect to the Registration Statement under Section 8(d) or 8(e) of the
Act, (v) the aggregate number of days in any one such suspension period exceeds
the period permitted pursuant to Section 2(d) or 3(c) hereof, as each may be
applicable, or (vi) the number of suspension periods exceeds the number
permitted pursuant to Section 2(d) or 3(c) hereof, as each may be applicable
(each of the events of a type described in any of the foregoing clauses (i)
through (vi) are individually referred to herein as an "Event"; and the date
specified for the filing of the Registration Statement in the case of clause
(i), the target date specified for the declaration of the effectiveness of the
Registration Statement in the case of clause (ii), the date specified for the
Consummation of the Registered Exchange Offer in the case of clause (iii), the
date on which the effectiveness of a Registration Statement has been suspended
or proceedings with respect to the Registration Statement under Section 8(d) or
8(e) of the Act have been commenced in the case of clause (iv), the date on
which the duration of a suspension period exceeds the periods permitted by
Section 2(d) or 3(c) hereof, as each may be applicable, in the case of clause
(v), and the date of the commencement of a suspension period that causes the
limit on the number of suspension periods under Section 2(d) or 3(c) hereof, as
each may be applicable, to be exceeded in the case of clause (vi), are referred
to herein as an "Event Date"). Events shall be deemed to continue until the date
of the termination of such Event, which shall be the following date with respect
to the respective types of Events: the date the Registration Statement is filed
in the case of an Event of the type described in clause (i), the date the
Registration Statement is declared effective under the Act in the case of an
Event described in clause (ii), the date a Registered Exchange Offer is
Consummated in the case of an Event described in clause (iii), the date that all
stop orders suspending effectiveness of the Registration Statement have been
removed and the proceedings initiated with respect to the Registration Statement
under Section 8(d) or 8(e) of the Act have terminated, as the case may be, in
the case of Events of the types described in clause (iv), termination of the
suspension period which caused the aggregate number of days in any one
suspension period to exceed the number permitted by Section 2(d) or 3(c) to be
exceeded in the case of Events of the type described in clause (v), and
termination of the suspension period the commencement of which caused the number
of suspension periods permitted by Section 2(d) or 3(c) to be exceeded in the
case of Events of the type described in clause (vi).
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(b) Accordingly, upon the occurrence of any Event and until
such time as there are no Events which have occurred and have not terminated (a
"Damages Accrual Period"), commencing on the Event Date on which such Damages
Accrual Period began, the Borrower and the Guarantors jointly and severally
agree to pay to each Holder, as liquidated damages (the "Liquidated Damages"),
and not as a penalty, with respect to the first 90-day period immediately
following the Event Date, an additional amount equal to $0.05 per week per
$1,000 principal amount of Exchange Notes or Registrable Notes held by such
Holder. The amount of the liquidated damages shall increase by an additional
$0.05 per week per $ 1, 000 principal amount of notes with respect to each
subsequent 90-day period until such Event have terminated, up to a maximum
amount of liquidated damages of $0.30 per week per $1,000 principal amount of
notes. Notwithstanding the foregoing, no Liquidated Damages shall accrue after
the expiration of the Registration Period.
(c) Liquidated Damages due on any Exchange Note or Registrable
Note, as the case may be, shall be payable on each date falling during the
Damage Accrual Period on which interest is due on such notes, and on the date
immediately following (or which would have followed) the termination of such
Period on which interest is due on the notes (the "Damages Payment Dates"). The
Issuer shall pay the Liquidated Damages due on any Registrable Notes or Exchange
Notes by depositing with the Trustee under the appropriate Indenture, in trust,
for the benefit of the Holders of Exchange Notes or Registrable Notes, as the
case may be, entitled thereto, at least one Business Day prior to the applicable
Damages Payment Date, sums sufficient to pay the Liquidated Damages accrued or
accruing since the last preceding Damages Payment Date to such Damages Payment
Date. The Trustee shall be entitled, on behalf of the Holders of Exchange Notes
or Registrable Notes, as the case may be, to seek any available remedy for the
enforcement of this Agreement, including for the payment of such Liquidated
Damages. Notwithstanding the foregoing, the parties agree that the sole remedy
payable for a violation of the terms of this Agreement with respect to which
Liquidated Damages are expressly provided shall be such Liquidated Damages.
Nothing shall preclude a Holder of Exchange Notes or Registrable Notes from
pursuing or obtaining specific performance or other equitable relief with
respect to any violation of this Agreement for which liquidated damages are not
expressly provided by this Agreement.
(d) All of the Issuer's and Guarantors' obligations set forth
in this Section 4 which are outstanding with respect to any Exchange Note or
Registrable Note at the time such note ceases to be covered by an effective
Registration Statement shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of the Agreement).
5. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuer and the Guarantors shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included
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therein and shall use their best efforts to reflect in each such document, when
so filed with the Commission, such comments as the Initial Purchasers reasonably
may propose.
(b) The Issuer and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
provided, that no representation or agreement shall be required to be made
hereby with respect to information with respect to the Initial Purchasers, any
Underwriter or any Holder required to be included in any Registration Statement
or Prospectus pursuant to the Act or the rules and regulations thereunder or
provided in writing by the Initial Purchasers, any Holder or any Underwriter
specifically for inclusion in any Registration Statement or Prospectus.
(c) (1) The Issuer and the Guarantors shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement, the
Holders of Registrable Notes covered thereby, and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Issuer and the Guarantors shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
Registrable Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in writing to
the Issuer a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchasers or any such Holder or Exchanging Dealer,
confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
12
(ii) of the receipt by the Issuer or the Guarantors of any
notification with respect to the suspension of the qualification of the
Registrable Notes included in any Registration Statement for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant
to Section 5(c) hereof or of the happening of any event that requires
the making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Issuer and the Guarantors shall use their best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time and in any event shall
within 30 days of any such order (or, if such 30th day is not a Business Day, by
the first Business Day thereafter) amend the Registration Statement covering all
of the Registrable Notes (whereupon references herein to the Registration
Statement shall be deemed to include reference to such additional filing).
(e) The Issuer and the Guarantors shall furnish to each Holder
of Registrable Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those incorporated by reference).
(f) The Issuer and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Registrable Notes included within
the coverage of any Shelf Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuer and the Guarantors consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Issuer and the Guarantors shall furnish to each
Exchanging Dealer that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated by
reference therein and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including those incorporated by reference).
(h) The Issuer and the Guarantors shall, during the Exchange
Offer Registration Period, deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus (including each preliminary Prospectus) included
in such Exchange Offer Registration Statement
13
and any amendment or supplement thereto as such Exchanging Dealer may reasonably
request; and the Issuer and the Guarantors consent to the use of the Prospectus
or any amendment or supplement thereto by any such Exchanging Dealer in
connection with the offering and sale of the Exchange Notes, as provided in
Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other
offering of Registrable Notes pursuant to any Registration Statement, the Issuer
and the Guarantors shall register, qualify or cooperate with the Holders of
Registrable Notes included therein and their respective counsel in connection
with the registration or qualification of such Registrable Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Registrable Notes covered by such Registration Statement; provided, however,
that none of the Issuer or Guarantors will be required to qualify generally to
do business in any jurisdiction in which any of them is not then so qualified,
to file any general consent to service of process or to take any action which
would subject any of them to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(j) The Issuer and the Guarantors shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold pursuant to any Registration Statement
free of any restrictive legends and in denominations and registered in such
names as Holders may request prior to sales of Registrable Notes pursuant to
such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Issuer and the Guarantors shall promptly
prepare and file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required document
so that, as thereafter delivered to purchasers of the Registrable Notes included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) The Issuer and the Guarantors shall use their best efforts
to cause The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Registration Statement hereunder or as soon
as possible thereafter to remove (i) from any existing CUSIP number assigned to
the Registrable Notes or Exchange Notes, as the case may be, any designation
indicating that such notes are "restricted securities," which efforts shall
include delivery to DTC of a letter executed by the Issuer substantially in the
form of Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to the Registrable Notes or Exchange Notes, as the case may be. In
the event the Issuer and the Guarantors are unable to cause DTC to take actions
described in the immediately preceding sentence, the Issuer and the Guarantors
shall take such actions as the Initial Purchasers may reasonably request to
provide, as soon as practicable, a CUSIP number for the Registrable Notes or
Exchange Notes registered under such Registration Statement and to cause such
CUSIP number to be assigned to the Registrable Notes or Exchange Notes (or to
the maximum aggregate principal amount of the securities to which such number
may be assigned). Upon compliance with the foregoing requirements of this
Section 5(l), the Issuer shall provide the Trustee with global certificates for
14
such Registrable Notes or Exchange Notes, in a form eligible for deposit with
The Depository Trust Company.
(m) The Issuer and the Guarantors shall use their best efforts
to comply with all applicable rules and regulations of the Commission and shall
make generally available to their security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(n) The Issuer and the Guarantors shall cause the Indenture to
be qualified under the Trust Indenture Act in a timely manner.
(o) The Issuer and the Guarantors may require each Holder of
Registrable Notes to be sold pursuant to any Shelf Registration Statement to
furnish to the Issuer such information regarding the Holder and the distribution
of such Registrable Notes as may, from time to time, be reasonably required by
the Act and the rules and regulations promulgated thereunder, and the
obligations of the Issuer and the Guarantors to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(p) The Issuer and the Guarantors shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement (i) such information as the Majority Holders
provide or, if the Registrable Notes are being sold in an underwritten offering,
as the Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provide to the Issuer or Guarantors in writing for
inclusion in the Shelf Registration Statement or Prospectus, and (ii) such
information as a Holder may provide from time to time to the Issuer or
Guarantors in writing for inclusion in a Prospectus or any Shelf Registration
Statement concerning such Holder and the distribution of such Holder's
Registrable Notes and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
being notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Issuer and the Guarantors shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate actions as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of any Registrable Notes, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7 from Holders of Exchange Notes to the Issuer
and the Guarantors).
(r) In the case of any Shelf Registration Statement, the
Issuer and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Registrable Notes to be registered thereunder, any Underwriter
participating in any disposition pursuant to
15
such Shelf Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such Underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Issuer, the Guarantors and their subsidiaries;
(ii) cause the Issuer's and the Guarantors' officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney, accountant
or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by the Issuer or the
Guarantors, in their sole discretion, as confidential at the time of
delivery of such information shall be kept confidential by the Holders
or any such Underwriter, attorney, accountant or agent, unless
disclosure thereof is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally through the Issuer or the Guarantors or through a third party
without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders
of Registrable Notes registered thereunder and the Underwriters, if
any, in form, substance and scope as are customarily made by issuers to
Underwriters and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuer and the
Guarantors and updates thereof (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Issuer and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or the Guarantors or of any
business acquired by the Issuer and the Guarantors for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of the
Registrable Notes covered by such Shelf Registration Statement
(provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar
situations) and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuer
and the Guarantors.
(vii) The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 5(r) shall be performed at (A) the
effectiveness of such Shelf Registration
16
Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) The Issuer shall, if and to the extent required under the
Act and/or the Trust Indenture Act and the rules and regulations thereunder in
order to register the Registrable Notes (including the Note Guarantees, if any)
under the Act and qualify the Indenture under the Trust Indenture Act, cause
each Guarantor, if any, to sign any Registration Statement and take all other
action necessary to register the Note Guarantees, if any, under the applicable
Registration Statement.
6. Registration Expenses. The Issuer and the Guarantors shall
bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3, 4 and 5 hereof (other than brokers', dealers'
and underwriters' discounts and commissions and brokers', dealers' and
underwriters' counsel fees) and shall reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the Holders in connection therewith.
7. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the
Issuer and the Guarantors jointly and severally agree to indemnify and
hold harmless each Holder of Registrable Notes covered thereby, the
directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, in any
preliminary Prospectus or Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Issuer and the Guarantors will not
be liable in any case to the extent that any such loss, claim, damage
or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Issuer or the Guarantors by or on behalf
of any such Holder specifically for inclusion therein, (B) use of a
Registration Statement or the related Prospectus during a period when a
stop order has been issued in respect of such Registration or any
proceedings for that purpose have been initiated or use of a Prospectus
when use of such Prospectus has been suspended pursuant to Section
5(c); provided, further, in each case, that Holders received prior
notice of such stop order, initiation of proceedings or
17
suspension or (C) the Holder failing to deliver a Prospectus or the
then current Prospectus.
(ii) The Issuer and the Guarantors also agree to indemnify or
contribute to Losses, as provided in Section 7(d), of any Underwriters
of Registrable Notes registered under a Registration Statement, their
officers and directors and each person who controls such Underwriters
on substantially the same basis as that of the indemnification of the
selling Holders provided in this Section 7(a) and shall, if requested
by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 5(q) hereof.
(b) Each Holder of Registrable Notes covered by a Registration
Statement severally agrees to indemnify and hold harmless (i) the Issuer, (ii)
each Guarantor, (iii) each of their respective directors, (iv) each of their
respective officers who signs such Registration Statement and (v) each person
who controls the Issuer or any Guarantor within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Issuer
and the Guarantors to each such Holder, but only with reference to written
information relating to such Holder furnished to the Issuer and the Guarantors
by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, 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 in writing of the
commencement thereof, but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and 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 paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with an actual 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 reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall have authorized the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided, further, that the indemnifying
party shall not be responsible for the fees and expenses
18
of more than one separate counsel (together with appropriate local counsel)
representing all the indemnified parties under paragraph (a)(i), paragraph
(a)(ii) or paragraph (b) above. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Registrable Notes purchased by such Underwriter
under the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuer and the Guarantors shall be
deemed to be equal to the sum of (x) the aggregate principal amount of the Notes
and (y) the total amount of Liquidated Damages which the Issuer was not required
to pay as a result of registering the Registrable Notes covered by the
Registration Statement which resulted in such Losses. Benefits received by any
Holder shall be deemed to be equal to the value of receiving Registrable Notes
registered under the Act. Benefits received by any Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Issuer or any Guarantor within the meaning of either the Act or the
Exchange Act, each officer of the Issuer or any Guarantor who shall have signed
the Registration Statement and each director of the Issuer or any Guarantor
shall have the same
19
rights to contribution as the Issuer or such Guarantor, subject in each case to
the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Issuer or any Guarantor or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive the sale by a Holder
of Registrable Notes covered by a Registration Statement.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports required to
be filed by it under the 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 Act and the Exchange Act and, if at any time the Issuer is
not required to file such reports, it will, upon the request of any Holder of
Registrable Notes, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Issuer further covenants, for so long as any Registrable
Notes remain outstanding, to make available to any Holder or beneficial owner of
Registrable Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Registrable Notes pursuant to Rule 144A.
9. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuer or the
Guarantors has, as of the date hereof, entered into nor shall any of them, on or
after the date hereof, enter into any agreement that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer and the Guarantors have
obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Registrable Notes are being sold pursuant to a Shelf Registration Statement or
whose Notes are being exchanged pursuant to an Exchange Offer Registration
Statement, as the case may be, and which does not directly or indirectly affect
the rights of other Holders may be given by such Holders, determined on the
basis of notes being sold rather than registered; and, furthermore, the
signatories hereto may make any amendment that does not, in the good faith
opinion of the board of directors of the Issuer (as evidenced by a resolution of
such board) materially affect any Holder. Notwithstanding any of the foregoing,
no amendment, modification, supplement, waiver or consents to any departure from
the provisions of Section 7 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
20
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchasers, as follows:
First Union Capital Markets
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o First Union Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
(ii) if to any other Holder, at the most current address given
by such Holder to the Issuer in accordance with the provisions of this
Section 9(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the registrar under the
Indenture, with a copy in like manner to the Initial Purchasers; and
(iii) if to the Issuer, as follows:
Fresh Foods, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Issuer by notice to the others may designate additional or
different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Issuer or any Guarantor thereto, subsequent Holders. The Issuer and the
Guarantors hereby agree to extend the benefits of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
(e) 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.
(f) Heading. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
21
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State, without regard to the
conflicts of law rules thereof
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Issuer, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Notes or Exchange Notes is required hereunder, Registrable Notes or Exchange
Notes held by the Issuer, the Guarantors or their Affiliates (other than
subsequent Holders of Registrable Notes or Exchange Notes if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
notes) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
* * * * *
22
Please confirm that the foregoing correctly sets forth the
agreement between the Issuer and the Initial Purchasers.
Very truly yours,
FRESH FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GUARANTORS:
BRUNSWICK ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CLAREMONT RESTAURANT GROUP, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
ELLOREE FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
23
FRESH FOODS PROPERTIES, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GEORGIA BUFFET RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
KNOXVILLE FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
MOM `N' POP'S COUNTRY HAM, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
OAK RIDGE FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SAGEBRUSH, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
24
SAGEBRUSH OF SEVIERVILLE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SAGEBRUSH OF TENNESSEE, L.P.
By: Sagebrush of South Carolina, LLC
General Partner
By: Sagebush, Inc., Sole Member
SEVEN STARS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
ST. AUGUSTINE FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
TENNESSEE WSMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
VIRGINIA WSMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
25
CHARDENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PIERRE FOODS, LLC
By: FRESH FOODS, INC. Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GEORGIA WSMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
KINGSPORT FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ PRIME SIRLOIN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NAPLES FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
26
PRIME SIRLOIN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SAGEBRUSH OF NORTH CAROLINA, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SAGEBRUSH OF SOUTH CAROLINA, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SPICEWOOD, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SOUTH CAROLINA WSMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SUNSHINE WSMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
27
TUMBLEWEED OF PIGEON FORGE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GREENVILLE FOOD SYSTEMS,
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
FRESH FOODS SALES, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SAGEBRUSH DTN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
D&S FOOD SYSTEMS, LLC
By: FRESH FOODS, INC., Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
28
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRST UNION CAPITAL MARKETS
A DIVISION OF WHEAT FIRST SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
29
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Notes received in exchange for Notes where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
30
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
31
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until _____________,1999, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Act and any profit
from any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Act.
For a period of one year after the Expiration Date, the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of
one counsel for the holders of the Notes) other than dealers' and brokers'
discounts, commissions and counsel fees) and will indemnify the holders of the
Notes (including any broker-dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
32
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
TM
Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
The undersigned represents that it is not an affiliate of the
Company, that any Exchange Notes to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Registered Exchange Offer it had no arrangement with any person to participate
in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
33
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10 3/4% Senior Notes Due 2006 (the "Notes") of Fresh
Foods, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement under the Securities Act of
1933, as amended, with regard to all of the Notes referenced above. Accordingly,
there is no longer any restriction as to whom such Notes may be sold and any
restrictions on the CUSIP designation are no longer appropriate and may be
removed. I understand that, upon receipt of this letter, DTC will remove any
stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
Very truly yours,
Authorized Officer
