EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
as of May 10, 2002 among DARLING INTERNATIONAL INC., a Delaware corporation (the
"Company"), and the other parties identified on the signature pages hereto
(individually, a "Holder" and collectively, the "Holders").
This Agreement is made pursuant to that certain Recapitalization Agreement,
dated as of March 15, 2002, by and among the Company, the Holders and the other
parties thereto (the "Recapitalization Agreement"). The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Recapitalization Agreement.
1. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following meanings:
"Additional Common Shares" means shares of Common Stock acquired pursuant
to the Investment Agreement by a Holder or eligible transferee under Section
1.03 of the Investment Agreement.
"Closing Date" is defined in Section 2.1.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the common stock of the Company, par value $0.01 per
share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any similar Federal statute.
"Form S-3" is defined in Section 2.1.
"Initial Lender Common Shares" means the shares of the Company's Common
Stock issued to the Holders in accordance with Section 2.2B of the
Recapitalization Agreement.
"Initial Lender Preferred Shares" means the shares of the Company's Series
A Preferred Stock issued to the Holders in accordance with Section 2.2B of the
Recapitalization Agreement
"Initiating Holder" is defined in Section 2.2.
"Investment Agreement" means that certain Investment Agreement dated of
even date herewith, entered into by and among the Company and the Holders.
"1993 Agreement" is defined in Section 2.8.
"Permitted Assignee(s)" means an assignee or assignees permitted pursuant
to paragraph 7 of this Agreement. The terms "Holder" and "Holders" as used
herein shall include Permitted Assignee(s) except where the context explicitly
limits those terms to parties identified on the signature pages to this
Agreement.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
"Piggyback Notice" is defined in Section 2.3(a).
"Piggyback Registration" is defined in Section 2.3(a).
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration, listing, filing and stock exchange and NASD fees, as
applicable, all fees and expenses of complying with securities or blue sky laws,
all word processing, duplicating and printing expenses (including expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), messenger and delivery expenses, any fees
and disbursements of underwriters customarily paid by issuers or sellers of
securities (excluding underwriting discounts and commissions), registrar and
transfer agent's fees, the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of "cold comfort"
letters required by or incident to such performance and compliance, reasonable
fees and expenses of one counsel to the Holders (selected by Holders
representing at least 50% of the Registrable Securities covered by each
registration statement filed pursuant to Section 2 and the fees and expenses of
any other Persons retained by the Company).
"Registrable Securities" means the Initial Lender Common Shares, the
Initial Lender Preferred Shares and any Additional Common Shares including, but
not limited to, any capital stock issued or issuable with respect to such shares
by way of stock dividend, stock split or in connection with a combination of
shares, reclassification, recapitalization, merger, consolidation,
reorganization or otherwise; provided, however, that securities shall cease to
be Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities are disposed of in accordance with such registration statement,
(b) sold as permitted by Rule 144 (or any successor provisions) under the
Securities Act, or (c) they cease to be outstanding.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Selling Holder" is defined in Section 2.2.
"Series A Preferred Stock" means the Series A Preferred Stock of the
Company, par value $0.01 per share, the designation, preferences and rights of
which are set forth in that certain Certificate of Designation, Preferences and
Rights filed with the Secretary of the state of Delaware on _________, 2002.
"Shelf Registration" is defined in Section 2.1.
2. Registration Under Securities Act, Etc.
2.1 Shelf Registration.
The Company agrees to file as soon as reasonably practicable after the
closing of the transactions contemplated under the Recapitalization Agreement
(but in no event later than ten (10) days thereafter) (the "Closing Date") a
registration statement with respect to all of the Registrable Securities on Form
S-1 (or any other appropriate form) covering the offer and sale of the
Registrable Securities by the Holders or their Permitted Assignee(s) on a
delayed and continuous basis pursuant to Rule 415 under the Securities Act (the
"Shelf Registration"). The Company agrees to use its reasonable best efforts to
have the Shelf Registration declared effective no later than 60 days after the
Closing Date and to keep the Shelf Registration with respect to the Registrable
Securities continuously effective, supplemented and amended, as required by the
Securities Act, for a period of 5 years following the date on which the Shelf
Registration is declared effective in order to permit the prospectus forming a
part thereof to be usable under the Securities Act by the Holders and their
Permitted Assignees from the date the Shelf Registration is declared effective
by the Commission; provided, however, that if for any reason the effectiveness
of the Shelf Registration is suspended, such period shall be extended by the
aggregate number of days of each such suspension period; and provided, further,
that the effectiveness of the Shelf Registration may be terminated earlier with
respect to the Registrable Securities if and to the extent that all of the
Registrable Securities registered therein cease to be Registrable Securities in
accordance with the terms hereof. The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration effective during the requisite
period if it voluntarily takes any action that would result in a holder of
Registrable Securities not being able to offer and sell such Registrable
Securities during that period, unless (a) such action is required by applicable
law, or (b) upon the occurrence of any event that requires the Company to make
changes in any registration statement or the prospectus in order that such
registration statement or prospectus does not contain an untrue statement of a
material fact and does not omit to state a material fact required to be stated
therein or necessary to make the
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statements therein (in the case of the prospectus, in light of the circumstances
under which they were made) not misleading, such action is taken by the Company
in good faith and for valid business reasons and the Company thereafter promptly
complies with the requirements of Section 2.5(g) below if the Company has
determined in good faith that there are no material legal or commercial
impediments in so doing. Notwithstanding the forgoing, if the Company shall
furnish to each holder of Registrable Securities, a certificate signed by the
President or chief financial officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such Shelf Registration to
be amended or supplemented and it is therefore in the best interests of the
Company and its stockholders to defer the amendment or supplement of such Shelf
Registration, the Company shall have the right to defer taking action with
respect to such amendment or supplement for a period of not more than 30
calendar days after furnishing such certificate to each holder of Registrable
Securities; provided, however, that the Company may not utilize this right more
than once in any 12 month period.
The Company shall use its best efforts to qualify for registration on
Form S-3 or any comparable or successor form or forms ("Form S-3"). Upon
becoming qualified for registration on Form S-3, the Company shall file as soon
as reasonably practicable an amendment to the Shelf Registration on Form S-1 to
convert it to a registration on Form S-3 and use its best efforts to have such
amendment declared effective as soon as practicable.
Notwithstanding any other provision of this Agreement to the contrary,
the Company shall cause (a) the Shelf Registration and the related prospectus
and any amendment or supplement thereto to comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission thereunder, (b) the Shelf Registration and any amendment
thereto not to contain, when it becomes effective, 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 (c) any prospectus
forming a part of the Shelf Registration, and any amendment or supplement to
such prospectus, not to contain, as of the date of such prospectus or amendment
or supplement, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company will have no obligations
under this paragraph with respect to the Plan of Distribution as described in
any prospectus related to the Shelf Registration or as to any written
information furnished to the Company through an instrument duly executed by or
on behalf of any such selling security holder specifically stating that it is
for use in the preparation of the Shelf Registration.
The Company agrees to pay all Registration Expenses in connection with
the Shelf Registration, whether or not it becomes effective.
2.2 Demand Registration.
(a) Request. At any time after the expiration of the five year term
for effectiveness of the Shelf Registration effected pursuant to Section 2.1,
upon the written request of one or more holders (each, an "Initiating Holder")
of the Registrable Securities representing not less than 33% of the Registrable
Securities then outstanding that the Company effect the registration under the
Securities Act of all or part of such Initiating Holders' Registrable Securities
(which written request shall specify the intended number of Registrable
Securities to be disposed of by such holder(s) and the intended method of
disposition thereof), the Company will promptly give written notice of such
requested registration to all registered holders of the Registrable Securities.
The Company will use its best efforts to effect the registration under the
Securities Act, including by means of a shelf registration pursuant to Rule 415
under the Securities Act or any similar rule then in effect, if so requested in
such request and the Company is then eligible to use such registration, of the
Registrable Securities which the Company has been so requested to register by
(i) such Initiating Holders and (ii) all such other holders (such holders
together with the Initiating Holders are hereinafter referred to as the "Selling
Holders") who by written request (which written request shall specify the
intended number of Registrable Securities to be disposed of by such holder(s)
and the intended method of disposition thereof) given to the Company within 30
days after the giving of such written notice by the Company request the Company
to register all or part of their Registrable Securities, all to the extent
requisite to permit the disposition of the Registrable Securities so to be
registered; provided, that the Company shall not be obligated to effect any
registration hereunder, if the aggregate offering price of the Registrable
Securities to be so registered is less than $10,000,000.
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(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.2 in connection with an
underwritten offering by one or more Selling Holders of Registrable Securities,
no securities other than Registrable Securities shall be included among the
securities covered by such registration unless the managing underwriter of such
offering shall have consented in writing to the inclusion of such other
securities. The Company shall not enter into an agreement providing for the
right to be included in any such offering with any of its security holders
(other than the Holders) unless such agreement shall be expressly subject to the
provisions of this Section 2.2(b).
(c) Registration Statement Form. Registrations under this Section 2.2
shall be on such appropriate registration form of the Commission as shall be
selected by the Selling Holders of more than 50% of the Registrable Securities
to be so registered and that shall be reasonably acceptable to the Company.
(d) Effective Registration Statement. A registration request pursuant
to this Section 2.2 shall not be deemed to have been effected (i) unless a
registration statement with respect thereon has become effective, (ii) if after
it has become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the Selling Holders and has
not thereafter become effective, (iii) if after it has become effective, such
registration statement is withdrawn or abandoned by the Selling Holders due to a
material adverse change to the Company, (iv) if such registration is postponed
by the Company pursuant to 2.2(g), or (v) if the conditions to closing specified
in the underwriting agreement, if any, entered into a connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of the Selling Holders.
(e) Selection of Underwriters. The underwriter or underwriters of each
underwritten offering of the Registrable Securities to be so registered shall be
selected by the Selling Holders of more than 50% of the Registrable Securities
to be so registered, subject to the Company's approval which will not be
unreasonably withheld or delayed.
(f) Priority in Requested Registration. If the managing underwriter of
any underwritten offering shall advise the Company in writing (with a copy to
each Selling Holder of Registrable Securities requesting registration) that, in
its opinion, the number or amount of securities requested to be included in such
registration exceeds the number or amount which can be sold in such offering
within a price range acceptable to the Selling Holders of more than 50% of the
Registrable Securities requested to be included in such registration, the
Company will include in such registration only the number or amount of
Registrable Securities which the Company is so advised in writing (with a copy
to each Selling Holder of Registrable Securities requesting registration) by the
managing underwriter can be sold in such offering. Any such limitation of
Registrable Securities requested to be included in such registration shall be
applied pro rata among the Selling Holders requesting such registration on the
basis of the aggregate number or amount of the Registrable Securities of such
Selling Holders requested to be so registered.
(g) Right to Postpone Registration. Notwithstanding the forgoing, if
the Company shall furnish to each Selling Holder of Registrable Securities, a
certificate signed by the President or chief financial officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore in the best
interests of the Company and its stockholders to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 calendar days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any 12 month period.
(h) Limitations on Demand Registrations. Notwithstanding anything in
this Section 2.2 to the contrary, in no event will the Company be required to
effect, in the aggregate, without regard to the holder of Registrable Securities
making such request, more than two registrations pursuant to this Section 2.2.
2.3 Piggyback Registrations.
(a) Right to Piggyback. If at any time subsequent to the expiration of
the five year term for effectiveness of the Shelf Registration effected pursuant
to Section 2.1, the Company proposes to file a registration statement under the
Securities Act (except on Form X-0, Xxxx X-0, or any successor forms thereto)
whether or not
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for its own account (other than a registration effected pursuant to Section 2.2
hereof), then the Company shall give written notice of such proposed filing to
the holders of Registrable Securities at least 30 days before the anticipated
filing date (the "Piggyback Notice"). The Piggyback Notice shall offer such
holders the opportunity to register such amount of Registrable Securities as
each such holder may request (a "Piggyback Registration"). Subject to Section
2.3(b) hereof, upon the written request of any such holders of Registrable
Securities made within 15 days of the date of the Piggyback Notice (which
request shall specify the aggregate number of the Registrable Securities to be
registered and will also specify the intended method of disposition thereof),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof, to the extent required to permit
the public disposition (without limitation or restriction as to amount or number
of Registrable Securities to be sold) (in accordance with such intended methods
thereof) of the Registrable Securities to be so registered; provided, however,
that if any time after giving written notice of the proposed filing and prior to
the effective date of the registration statement filed in connection with such
registration the Company shall determine for any reason not to pursue the
effectiveness of the registration, the Company shall give written notice of such
determination to each holder of Registrable Securities and, thereupon, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith. . The holders of Registrable Securities shall
be permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of such Piggyback
Registration.
(b) Priority on Piggyback Registrations. The Company shall cause the
managing underwriters of a proposed underwritten offering to permit holders of
Registrable Securities requested to be included in the registration for such
offering to include all such Registrable Securities on the same terms and
conditions as any similar securities, if any, of the Company or any selling
security holder included therein; provided, however, the inclusion of
Registrable Securities in a Piggyback Registration in respect of a demand
registration filed for the account of those certain Persons identified on the
signature pages to the 1993 Agreement (as hereinafter defined) or their
successors and assigns, will be subject to the consent in writing of the
managing underwriter of such offering; and, provided further, if the managing
underwriters of such underwritten offering determine in good faith that the
total number of securities that such holders, the Company, and any other persons
having rights to participate in such registration, propose to include in such
offering is such as to materially and adversely affect the success of such
offering, then (i) if such Piggyback Registration is a primary registration on
behalf of the Company, the securities to be offered shall be allocated as
follows: (A) first, the full number of securities to be offered by the Company
shall be included in such registration, (B) then, except as otherwise provided
in the proviso to this clause (B), up to the full number of securities to be
offered by holders of Registrable Securities shall be included in such
registration (allocated among such holders pro rata in proportion to the number
of securities owned to the extent necessary to reduce the total number of
securities to be included in such offering to the amount recommended by such
managing underwriters), provided, as to those certain Persons identified on the
signature pages to the 1993 Agreement or their successors and assigns, up to the
full number of securities to be offered by holders of Registrable Securities and
by such Persons shall be included in such registration (allocated among such
holders and Persons pro rata in proportion to the number of securities owned to
the extent necessary to reduce the total number of securities to be included in
such offering to the amount recommended by such managing underwriters), and (C)
to the extent an amount of securities recommended by the managing underwriters
remains available, up to that amount of securities shall be included in such
registration for the account of all such other persons (allocated among them pro
rata in proportion to the respective dollar amounts of securities owned to the
extent necessary to reduce the total number of securities to be included in such
offering to the amount recommended by such managing underwriters), and (ii) if
such Piggyback Registration is an underwritten secondary registration on behalf
of the holders of securities of the Company, the Company shall include in such
registration: (A) first, up to the full number of securities of such persons
exercising "demand" registration rights that in the opinion of such underwriter
can be sold (allocated among such holders as they may so determine), and (B)
second, the number of securities included in such registration pursuant to this
Section 2.3 in excess of the securities such persons exercising "demand"
registration rights proposed to sell that, in the opinion of such managing
underwriter, can be sold (allocated pro rata on the basis of aggregate dollar
amount of securities requested to be included therein).
(c) No Liability for Delay. So long as the Company complies with the
terms and conditions of this Agreement and its obligations hereunder, the
Company shall not be held responsible for any delay in the filing or processing
of a registration statement which includes any Registrable Securities nor for
any delay in requesting the effectiveness of such registration statement due to
requests by holders of Registrable Securities pursuant to this Section 2.3.
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2.4 "Market Stand-Off" Agreement.
(a) Restrictions on Public Sale by Holders of Registrable Securities.
Each holder of Registrable Securities which are covered by a registration
statement filed pursuant to Sections 2.2 or 2.3, hereof agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering, not to effect any public sale or distribution of any of
the Company's securities, including a sale pursuant to Rule 144 (except as part
of such underwritten offering), during the period beginning 10 days prior to,
and ending 180 days after (or such shorter period as may be agreed to by any
managing underwriter of an underwritten offering effected pursuant to Sections
2.2 or 2.3), the closing date of each underwritten offering made pursuant to
such registration statement, provided that the Company shall have used its
reasonable best efforts to cause all officers, directors and holders of 5% or
more of the then outstanding equity securities of the Company to enter into
similar agreements.
(b) Restrictions on Public Sale by the Company and Others. The Company
agrees (i) without the written consent of the managing underwriters in an
underwritten offering of Registrable Securities covered by a registration
statement filed pursuant to Sections 2.2 or 2.3 hereof, not to effect any public
or private sale or distribution of its securities, including a sale pursuant to
Regulation D under the Securities Act, during the period beginning 10 days prior
to, and ending 180 days after (or such shorter period as may be agreed to by any
managing underwriter of an underwritten offering effected pursuant to Sections
2.2 or 2.3), the closing date of each underwritten offering made pursuant to
such registration statement (except on Forms S-4 or S-8, or any successor forms
to such forms); (provided, however, that such period shall be extended by the
number of days from and including the date of the giving of any notice pursuant
to Section 2.5(g)(i) hereof to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 2.5(g)(i) hereof), and (ii) to use its best efforts to cause each holder
of its securities purchased from the Company at any time on or after the date of
this Agreement (other than securities purchased in a registered public offering)
to agree not to effect any public sale or distribution of any such securities
during such periods, including a sale pursuant to Rule 144.
2.5 Registration Procedures. In connection with any registration of any
Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2
and 2.3, the Company will as expeditiously as possible:
(a) prepare and (except as otherwise provided in Section 2.1, within
60 days after the end of the period within which requests for registration may
be given to the Company or in any event as soon thereafter as practicable) file
with the Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such registration
statement to become effective; provided, however, that the Company may
discontinue any registration of its securities which are not Registrable
Securities at any time prior to the effective date of the registration statement
relating thereto; provided further, that before filing a registration statement
or prospectus or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by reference)
required to be filed hereunder, the Company shall furnish, without charge, to
the holders of the Registrable Securities covered by such registration
statement, their counsel and the managing underwriters, if any, copies of any
such registration statement, prospectus, amendment or supplement, and of all
such documents proposed to be filed, which documents will be subject to the
review of such holders, their counsel and such underwriters, if any, and the
Company shall not file any such registration statement or prospectus or any
amendments or supplements thereto (including such documents that, upon filing,
would be incorporated or deemed to be incorporated by reference therein) to
which the holders of a majority of the Registrable Securities covered by such
registration statement, their counsel, or the managing underwriters, if any,
shall reasonably object, in writing, on a timely basis;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of all of such
Registrable Securities in accordance with the intended methods of distribution
set forth in such registration statement which shall be to the reasonable
satisfaction of the holders of Registrable Securities covered by such
registration statement;
(c) furnish to each holder of Registrable Securities covered by such
registration statement, such number of conformed copies of such registration
statement and of each such amendment and supplement
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thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as such holder may reasonably request;
(d) (i) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such states of the United States of
America where an exemption is not available and as the holders of Registrable
Securities covered by such registration statement shall reasonably request, (ii)
keep such registration or qualification in effect for so long as such
registration statement remains in effect, and (iii) take any other action which
may be reasonably necessary or advisable to enable such holders to consummate
the disposition in such jurisdictions of the securities to be sold by such
holders, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (d) be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(e) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary in the
opinion of counsel to the Company and counsel to the holders of Registrable
Securities covered by such registration statement to enable such holders to
consummate the disposition of such Registrable Securities;
(f) use its best efforts to furnish to each such holder a signed
counterpart of
(i) an opinion of counsel for the Company which can and shall be
reasonably satisfactory to the holders of a majority of the Registrable
Securities to be sold, and
(ii) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial statements included
or incorporated by reference in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities (and dated the dates such opinions
and comfort letters are customarily dated);
(g) (i) notify in writing each holder of Registrable Securities at any
time when a prospectus relating to Registrable Securities covered by such
registration statement is required to be delivered under the Securities Act, (A)
upon discovery that, or upon the happening of any event as a result of which,
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were made,
and at the request of any such holder promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include 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, in
the light of the circumstances under which they were made, (B) of any request by
the Commission or any other Federal or state governmental authority for
amendments or supplements to a registration statement or related prospectus
covering Registrable Securities or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of a registration statement covering Registrable Securities or the
initiation of any proceeding for that purpose, or (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose and (ii) notify each holder of Registrable Securities covered by such
registration statement when each registration statement or any amendment thereto
has been filed with the Commission and when each registration statement or any
post-effective amendment thereto has become effective;
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(h) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(i) otherwise use it best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the period of
at least twelve months beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act, and promptly
furnish to each such holder of Registrable Securities covered by the
registration statement a copy of any amendment or supplement to such
registration statement or prospectus;
(j) permit any holder of Registrable Securities which might be deemed,
in the sole and exclusive judgment of such holder, to be an underwriter or a
controlling person of the Company to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(k) enter into customary agreements (including an underwriting
agreement, if such proposed registration is to be an underwritten offering,
containing representations and warranties, conditions to closing and
indemnification and contribution obligations in customary form), use its best
efforts to obtain any necessary consents, including without limitation any
necessary consents of the Company's lenders, in connection with any proposed
registration and sale of Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar
(which, in each case, may be the Company) for all Registrable Securities covered
by such registration statement from and after a date not later than the
effective date of such registration;
(m) use its best efforts to (i) list all Common Stock covered by such
registration statement on any national securities exchange on which Registrable
Securities of the same class and, if applicable, series, covered by such
registration statement are then listed, or (ii) seek the authority for such
Common Stock to be quoted on the NASDAQ or the National Market System of NASDAQ
if the securities so qualify; and
(n) take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Securities.
The Company may require each holder of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such holder and the distribution of such securities as the Company may
from time to time reasonably request in writing. However, no holders of
Registrable Securities shall be required to make any representations or
warranties to or agreements with the Company or any underwriter other than
customary representations, warranties or agreements regarding such holder, such
holder's Registrable Securities and such holder's intended method of
distribution and any other representation required by law.
Each holder agrees that upon receipt of any written notice from the
Company of the happening of any event of the kind described in subdivision
(g)(i) of this Section 2.5, such holder will forthwith discontinue such holder's
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(g)(i) of this Section 2.5 and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
2.6 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of the Registrable
Securities registered under such registration statement, and their underwriters,
if any, and their respective counsel and accountants the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and, to the extent practicable,
each amendment thereof or supplement thereto, and give each of them such access
to its books and records (to the extent customarily given to the underwriters of
the Company's securities), such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be
8
necessary, in the opinion of such holders', such underwriters' and such
respective counsel and accountants, to conduct a reasonable investigation within
the meaning of the Securities Act.
2.7 Indemnification.
(a) Indemnification by the Company. In the event of any registration
of any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed pursuant to this Agreement, each seller of any Registrable
Securities covered by such registration statement, its directors, officers,
partners, members, agents and affiliates and each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller or any such Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and, subject to Section
2.7(c), the Company will reimburse any Holder, such seller, and each such
director, officer, partner, member, agent, or affiliate, underwriter and
controlling Person for any legal or any other expenses reasonable incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such seller or such controlling
person, as the case may be, specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder, such seller,
or any such director, officer, partner, agent or affiliate or controlling person
and shall survive the transfer of such securities by such seller.
(b) Indemnification by the Selling Holders. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, and, to the extent permitted by law, each such holder will
deliver to the Company an agreement duly executed to indemnify and hold harmless
(in the same manner and to the same extent as set forth in subdivision (a) of
this Section 2.7) the Company, its directors, officers and agents, and each
other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any untrue statement of any material fact or
alleged untrue statement of any material fact in or omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances in which they were
made not misleading, in such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, but only to the extent that it is contained in any written
information or affidavit so furnished in writing by such holder; provided, that
the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.7,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided, that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligation s
under the preceding subdivisions of this Section 2.7, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with one counsel
9
reasonable satisfactory to such indemnified party and all other indemnified
parties that may be represented without conflict by one counsel, and after
written notice from the indemnifying party to such indemnified party and all
other indemnified parties that may be represented without conflict by one
counsel, and after written notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other that reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its written consent. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this Section
2.7 shall for any reason be held by a court to be unavailable to an indemnified
party under subparagraph (a) or (b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, then, in lieu of the amount paid
or payable under subparagraph (a) or (b) hereof, the indemnified party and the
indemnifying party under subparagraph (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i) in
such proportion as is appropriate to reflect the relative fault of the Company
and the prospective sellers of Registrable Securities covered by the
registration statement which resulted in such loss, claims, damage or liability,
or action in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and such prospective sellers from the offering of the securities
covered by such registration statement. 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. Such prospective sellers' obligations to
contribute as provided in this subparagraph (d) are several in proportion to the
relative value of their respective Registrable Securities covered by such
registration statement and not joint. In addition, no Person shall be obligated
to contribute hereunder any amounts in payment for any settlement of any action
or claim effected without such Person's consent, which consent shall not be
unreasonable withheld.
(e) Other Indemnification. Indemnification and contribution similar to
that specified in the preceding subdivisions of this Section 2.7 (with
appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnities and contribution
required by this Section 2.7 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expenses, loss, damage or liability is incurred.
(g) Underwriting Agreement. To the extent that the provisions
regarding indemnification and contribution contained in any underwriting
agreement entered into in connection with an underwritten public offering of
Registrable Securities are in conflict with the provisions of this Section 2.7,
the provisions contained in the underwriting agreement shall control.
2.8 Certain Other Agreements.
(a) No agreement granting any registration rights to any Person with
respect to any of the Company's securities currently remains in force and effect
except (i) that certain Registration Rights Agreement entered into by the
Company and certain other Persons identified on the signature pages thereto,
dated as of December 29, 1993 as amended by the First Amendment dated as of
April 6, 1994 (as amended the "1993 Agreement"), (ii) that certain Stock Option
Agreement entered into by the Company and Xxxxx Xxxxx, dated as of December 13,
2000 and (iii) that certain Stock Option Agreement entered into by the Company
and Xxxxx Xxxxx, dated as of March 15, 2000. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement, including without limitation entering into any agreement which would
permit the registration of any securities to the exclusion of any portion of the
Registrable Securities, unless such exclusion is first waived in writing by the
holders of more than 50% or the Registrable Securities then outstanding. Without
limiting the generality of the foregoing, any
10
registration rights hereafter granted by the Company shall be subordinate to the
registration rights granted under this Agreement, and the Company shall obtain
the written agreement of each Person to whom such other registration rights may
be granted or may become available to such effect. This Agreement shall be
construed so that it is not inconsistent with the 1993 Agreement. Each Holder
agrees that its registration rights hereunder are subordinated to the
registration rights granted under the 1993 Agreement.
(b) The Company will not effect or permit to occur, any combination or
subdivision of Registrable Securities, which would adversely affect the ability
of the holders of Registrable Securities to include such Registrable Securities
in any registration of its securities contemplated by this Section 2 or the
marketability of such Registrable Securities under any such registration.
2.9 Certain Rights If Named in a Registration Statement. If any statement
contained in a registration statement under the Securities Act refers to the
holder of Registrable Securities by name or otherwise as the holder of any
securities of the Company, then such holder shall have the right to require (a)
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
does not necessarily make such holder a "controlling person" of the Company
within the meaning of the Securities Act or (b) in the event that such reference
to such holder by name or otherwise is not required by the Securities Act or any
of the rules and regulations promulgated thereunder, the deletion of the
reference to such holder.
2.10 Registration Expenses. The Company shall pay the Registration Expenses
in connection with any registration requested pursuant to this Section 2.
3. Rule 144. The Company shall take all actions reasonable necessary to
enable the holders of Registrable Securities to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed by the Exchange Act.
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
4. Amendments and Waivers. This Agreement may be amended with the consent
of the Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, in each of the foregoing
cases only if the Company shall have obtained the written consent to such
amendment, action or omission to act, of the holder or holders of at least a
majority of each issue of the Registrable Securities at the time of such
consent. 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 or Registrable Securities whose securities are being sold
pursuant to a registration statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of least a majority of the Registrable Securities being sold by such
holders pursuant to such Registration Statement, provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
5. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shared of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonable
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
6. Notices. All communications provided for hereunder shall be sent by
postage prepaid first-class mail, receipted courier service or facsimile
telecommunication, shall be deemed to be received three days after being sent,
or, if earlier, the date of actual receipt at the indicated address, and shall
be addressed as follows:
(a) if to any Holder or any transferee of Registrable Securities,
addressed to such person(s) at such address as shown on stock ledger of the
Company;
11
(b) if to the Company, addressed to it at its principal executive
officer or at such other address as the Company shall have furnished to each
holder of Registrable Securities at the time outstanding.
7. Assignment; Calculation of Percentage Interests in Registrable
Securities.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns, including any Person to whom Registrable Securities are transferred;
provided that the securities so transferred continue to be considered
Registrable Securities in the hands of such Person.
(b) For purposes of this Agreement, all references to a percentage of
the Registrable Securities shall be calculated based upon the number of such
shares held by those holders needed to be included for purposes of such
calculation.
8. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
9. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by the internal
laws of the State of Delaware.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
11. Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
12. Entire Agreement. This Agreement embodies the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements relating to such subject matter.
13. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
14. Further Assurances. Each party to this Agreement hereby covenants and
agrees, without the necessity of any further consideration, to execute and
deliver any and all such further documents and take any and all such other
actions as may be necessary or appropriate to carry out the intent and purposes
of this Agreement and to consummate the transactions contemplated hereby.
Signature pages follow
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
COMPANY:
-------
DARLING INTERNATIONAL INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Treasurer
Address for Notices:
-------------------
000 X'Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Treasurer
HOLDERS:
-------
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: Manager
Address for Notices:
-------------------
Ark CLO 2000-1, Limited
c/o Patriarch Partners, LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx/Xxxx Xxxxxx
And
Woodside Capital Management, LLC
00 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
13
BANK ONE N.A.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Address for Notices:
-------------------
Bank One N.A.
Mail Code IL1-0631
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Attorney in Fact
Address for Notices:
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
AVENUE SPECIAL SITUATIONS FUND II L.P.
By: Avenue Capital Management II, LLC
Its General Partner
By: GLS Partners II, LLC,
Managing Member
Of General Partner
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Member
Address for Notices:
-------------------
Avenue Capital Group
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxx Xxxxx
14
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxx xxx Xxxxxxx
--------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
Address for Notices:
-------------------
Credit Agricole Indosuez, New York Branch
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxxx Xxxxxxx
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
-------------------
Credit Lyonnais New York Branch
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xx. Xxxxx Xxxxxxx
With a copy to:
--------------
Credit Lyonnais Dallas Branch
0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxx Xxxxx
15
PPM AMERICA SPECIAL INVESTMENTS
FUND, L.P.
By: PPM America, Inc., as its
attorney-in-fact
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address for Notices:
-------------------
PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Tel No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxxx Xxxxxx
Vice President
PPM AMERICA SPECIAL INVESTMENTS CBO II,
L.P.
By: PPM America, Inc., as its
attorney-in-fact
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address for Notices:
-------------------
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Applicable Lending Office:
-------------------------
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
16
DAPLE, S.A.
By: PPM America, Inc., as its
attorney-in-fact
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address for Notices:
-------------------
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Applicable Lending Office:
-------------------------
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
XXXXX FARGO BANK (TEXAS) NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address for Notices:
-------------------
Xxxxx Fargo Bank (Texas) National Association
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
17
