EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
Dated as of March 8, 2000
by and among
IFCO SYSTEMS N.V.,
THE GUARANTORS
named herein
and
CIBC WORLD MARKETS CORP.
and
BANC ONE CAPITAL MARKETS, INC.,
as Initial Purchasers
__________________________
(Euro)200,000,000
10 5/8% SENIOR SUBORDINATED NOTES DUE 2010
TABLE OF CONTENTS
Page
----
1. Definitions........................................... 1
2. Exchange Offer........................................ 5
3. Shelf Registration.................................... 10
4. Additional Interest................................... 12
5. Registration Procedures............................... 14
6. Registration Expenses................................. 26
7. Indemnification....................................... 27
8. Rules 144 and 144A.................................... 31
9. Underwritten Registrations............................ 31
10. Miscellaneous......................................... 32
(a) Remedies......................................... 32
(b) No Inconsistent Agreements....................... 32
(c) Adjustments Affecting Registrable Notes.......... 32
(d) Amendments and Waivers........................... 32
(e) Notices.......................................... 33
(f) Successors and Assigns........................... 34
(g) Counterparts..................................... 35
(h) Headings......................................... 35
(i) Governing Law.................................... 35
(j) Severability..................................... 35
(k) Notes Held by any Issuer or Its Affiliates....... 36
(l) Third Party Beneficiaries........................ 36
(m) Entire Agreement................................. 36
(n) Agent for Service; Submission to Jurisdiction;
Waiver of Immunities............................ 36
(o) Judgment Currency................................ 37
(p) Joint and Several Obligations.................... 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of March 8, 2000, by and among IFCO Systems N.V., a public
limited liability company incorporated under the laws of the Netherlands (the
"Company"), the Guarantors (as defined) and CIBC World Market Corp. and Banc One
Capital Markets, Inc. (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated March 3, 2000, by and among the Company, the Guarantors and the
Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Company to the Initial Purchasers of (Euro)200,000,000 aggregate principal
amount of the Company's 10 5/8% Senior Subordinated Notes due 2010 (the "Notes")
and the unconditional guarantee thereof by the Guarantors on a joint and several
basis (the "Guarantee"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Issuers (as defined) have agreed to provide the
registration rights set forth in this Agreement for the benefit of the holders
of Registrable Notes (as defined), including, without limitation, the Initial
Purchasers. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to this Agreement.
Applicable Period: See Section 2(b).
Business Day: A day that is not a Saturday, a Sunday, or a day on
which banking institutions in New York, New York or Amsterdam, The Netherlands
are required to be closed.
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Closing Date: The Closing Date as defined in the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Company: See the first introductory paragraph to this Agreement.
Effectiveness Date: The 180th day after the Issue Date, in the case
of the Exchange Registration Statement or the Initial Shelf Registration
Statement if the Exchange Registration Statement has not been declared effective
under the Securities Act and otherwise the 180th day after the delivery of the
Shelf Notice in the case of the Initial Shelf Registration Statement.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 90th day after the Issue Date (regardless of whether
the actual filing precedes such date). For purposes of this Agreement, the
terms "file", "filed" and "filing" shall include any submission to the
Commission for review on a confidential basis pursuant to the procedures
applicable to foreign private issuers.
Guarantee: See the second introductory paragraph to this Agreement.
Guarantors: The guarantors identified on the signature pages attached
hereto.
Holder: Any registered holder of Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
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Indenture: The Indenture, dated as of March 8, 2000, by and among the
Issuers and The Bank of New York, as trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the first introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the Notes were sold to the Initial
Purchasers pursuant to the Purchase Agreement.
Issuers: The Company and the Guarantors, collectively.
NASD: National Association of Securities Dealers, Inc.
Notes: See the second introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government (including any agency or political subdivision
thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities 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 other
amendments and supplements to the Prospectus, including post-effective
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amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance thereof and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance thereof and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, until, in the case of any such Note, Exchange Note or
Private 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
Section 2(c)(iv) hereof is applicable) covering such Note, Exchange Note or
Private Exchange Note, as the case may be, has been declared effective by the
Commission and such Note, Exchange Note or Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note, Exchange Note or Private Exchange Note, as the case
may be, is sold in compliance with Rule 144, (iii) such Note, Exchange Note or
Private Exchange Note is eligible to be sold pursuant to paragraph (k) of Rule
144, (iv) in the case of any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which may be resold
without restriction under federal securities laws, or (v) such Note, Exchange
Note or Private Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, that covers
any of the Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the Commission providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such
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securities being free of the registration and prospectus delivery requirements
of the Securities Act.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the Commission.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) Each of the Issuers agrees to file with the Commission no later
than the Filing Date, an offer to exchange (the "Exchange Offer") any and all of
the Registrable Notes (other than Private Exchange Notes, if any) for a like
aggregate principal amount of debt securities of the Company which are identical
in all material respects to the Notes (the "Exchange Notes") (and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (including, without
limitation, the guarantee provisions thereof) (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply with
any requirements of the Commission to effect or maintain the qualification
thereof under the TIA or which eliminate the transfer restrictions on the Notes
or
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provisions for the payment of additional interest in certain circumstances)
and which, in either case, has been qualified under the TIA), except that the
Exchange Notes shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive legend
thereon or provisions for the payment of additional interest under certain
circumstances. The Exchange Offer shall be registered under the Securities Act
on the appropriate form (the "Exchange Registration Statement") and shall comply
with all applicable tender offer rules and regulations under the Exchange Act.
Each of the Issuers agrees to use its reasonable best efforts to (x) cause the
Exchange Registration Statement to be declared effective under the Securities
Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at
least 20 Business Days (or longer if required by applicable law) after the date
that notice of the Exchange Offer is first mailed to Holders; and (z) consummate
the Exchange Offer on or prior to the 210th day following the Issue Date. If
after such Exchange Registration Statement is initially declared effective by
the Commission, the Exchange Offer or the issuance of the Exchange Notes
thereunder is interfered with by any stop order, injunction or other order or
requirement of the Commission or any other governmental agency or court with
respect to such Exchange Offer, such Exchange Registration Statement shall be
deemed not to have become effective for purposes of this Agreement during the
period of such interference until the Exchange Offer may legally resume. Each
Holder who participates in the Exchange Offer will be required to represent, as
a condition to its participation in the Exchange Offer, to the Issuers in
writing (which may be contained in the applicable Letter of Transmittal) (i)
that any Exchange Notes received by it will be acquired in the ordinary course
of its business, (ii) that at the time of the consummation of the Exchange Offer
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes, (iii) that such Holder is
not an affiliate of any Issuer within the meaning of the Securities Act, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of Exchange Notes, (v) if such Holder is a broker-dealer, that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, (vi) that it will deliver a
Prospectus in connection with any resale of such Exchange Notes, and (vii) any
additional representations that in the written opinion of counsel to the Issuers
are necessary under then-existing interpretations of the Commission in order for
the Exchange Registration Statement to be declared effective.
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Upon consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Notes that are Private Exchange Notes, Exchange
Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Issuers shall have no further obligation
to register Registrable Notes (other than Private Exchange Notes and other than
in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 of this Agreement.
No securities other than the Exchange Notes shall be included in the
Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the Commission
(and publicly disseminated) with respect to the potential "underwriter" status
of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer. Such "Plan of Distribution"
section shall also expressly permit, to the extent permitted by applicable
policies and regulations of the Commission, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent so permitted, all Participating Broker-Dealers, and
include a statement describing the manner in which Participating Broker-Dealers
may resell the Exchange Notes.
Each of the Issuers shall use its reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time beginning when the Exchange Notes are
first issued in the Exchange Offer and ending upon the earlier of the expiration
of the 180th day after the Exchange Offer has been completed and such Persons
are no longer required to comply with the prospectus delivery requirements in
connection with offers and sales of the Exchange Notes (the "Applicable
Period").
If, immediately prior to consummation of the Exchange Offer, any
Initial Purchaser holds any Notes acquired by it that have the status of an
unsold allotment in the initial
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distribution, the Issuers upon the request of such Initial Purchaser shall,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to such Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Initial Purchaser, a like principal amount
of debt securities of the Company that are identical in all material respects to
the Exchange Notes except for the existence of restrictions on transfer thereof
under the Securities Act and securities laws of the several states of the U.S.
(the "Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange Notes shall bear the same
CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private
Exchange Notes will accrue from the last interest payment date on which interest
was paid on the Notes surrendered in exchange therefor or, if no interest has
been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled
to participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York, which
may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York time, on the last Business
Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
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(2) deliver to the Trustee for cancellation in accordance with the
Indenture all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or the Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the Staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, (iii) all governmental approvals
shall have been obtained, which approvals the Issuers deem necessary for the
consummation of the Exchange Offer or the Private Exchange, (iv) there has not
been any material change, or development involving a prospective material
change, in the business or financial affairs of the Issuers which, in the
reasonable judgment of the Issuers, would materially impair the Issuers' ability
to consummate the Exchange Offer or the Private Exchange Offer, and (v) there
has not been proposed, adopted or enacted any law, statute, rule or regulation
which, in the reasonable judgment of the Issuers, would materially impair the
Issuers' ability to consummate the Exchange Offer or the Private Exchange Offer
or have a material adverse effect on the Issuers if the Exchange Offer or the
Private Exchange Offer was consummated.
Each Holder of Registrable Notes who wishes to exchange such
Registrable Notes for Exchange Notes in the Exchange Offer will be required to
make certain customary representations in connection therewith, including
representations that such Holder is not an affiliate of the Issuers within the
meaning of Rule 405 under the Securities Act, that any Exchange Notes to be
received by it will be acquired in the ordinary course of business and that at
the time of commencement of the Exchange Offer it had no arrangement with any
Person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes and will be required to make such other
representations as may be necessary under applicable Commission rules,
regulations or interpretations to render
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available the use of Form F-4 or any other appropriate form under the Securities
Act.
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes, if any, will vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes, if any, will have the right to
vote or consent as a separate class on any matter.
(c) If (i) because of any change in law or in currently prevailing
interpretations of the Staff of the Commission, the Company is not permitted to
effect an Exchange Offer, (ii) the Exchange Offer is not consummated within 210
days of the Issue Date, (iii) any holder of Private Exchange Notes so requests
in writing to the Company within 60 days after the consummation of the Exchange
Offer or (iv) in the case of any Holder that participates in the Exchange Offer
(and tenders its Registrable Notes prior to the expiration thereof), such Holder
does not receive Exchange Notes on the date of the exchange that may be sold
without restriction under federal securities laws (other than due solely to the
status of such Holder as an affiliate of any Issuer within the meaning of the
Securities Act) and so notifies the Company within 30 days following the
consummation of the Exchange Offer (and providing a reasonable basis for its
conclusions), in the case of each of clauses (i)-(iv), then the Issuers shall
promptly deliver to the Holders and the Trustee written notice thereof (the
"Shelf Notice") and shall file a Shelf Registration pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Shelf Registration. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes (the "Initial Shelf
Registration"). If the Issuers shall not have yet filed the Exchange
Registration Statement, each of the Issuers shall use its reasonable best
efforts to file with the Commission the Initial Shelf Registration on or prior
to the Filing Date and shall use its reasonable best efforts to cause such
Initial Shelf Registration to
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be declared effective under the Securities Act on or prior to the Effectiveness
Date. Otherwise, the Issuers shall file with the Commission the Initial Shelf
Registration within 60 days of the delivery of the Shelf Notice and shall use
their reasonable best efforts to cause such Shelf Registration to be declared
effective under the Securities Act on or prior to the Effectiveness Date. The
Initial Shelf Registration shall be on Form F-1 or another appropriate form
permitting registration of such Registrable Notes for resale by Holders in the
manner or manners designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities other than
the Registrable Notes to be included in any Shelf Registration. The Issuers
shall, subject to applicable law or applicable interpretations of the
Commission, use their reasonable best efforts to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
which is 24 months from the Issue Date (or, if Rule 144(k) under the Securities
Act is amended to permit unlimited resales by non-affiliates within a lesser
period, such lesser period) (subject to extension pursuant to the last paragraph
of Section 5 hereof) (the "Effectiveness Period") or such shorter period ending
when (i) all Registrable Notes covered by the Initial Shelf Registration have
been sold in the manner set forth and as contemplated in the Initial Shelf
Registration or cease to be outstanding or (ii) a Subsequent Shelf Registration
covering all of the Registrable Notes has been declared effective under the
Securities Act.
(b) 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 Issuers in writing, within 5 days after
receipt of a request therefor, such information the Issuers may reasonably
request for inclusion in any Shelf Registration Statement or prospectus or
preliminary prospectus included therein. No Holder of Registrable Notes shall
be entitled to Additional Interest pursuant to Section 4 hereof unless and until
such Holder shall have provided all such information. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Issuers additional information required to be disclosed in the applicable
Shelf Registration Statement by the rules and regulations of the Commission in
order to make the information previously furnished to the Issuers by such Holder
not materially misleading.
(c) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the
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Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Issuers shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 60 days of such cessation of effectiveness amend
the Shelf Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes covered by
and not sold under the Initial Shelf Registration Statement or an earlier
subsequent shelf registration (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuers shall use their reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the number of days in
the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration or any Subsequent Shelf Registrations was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(d) Supplements and Amendments. The Issuers shall use their
reasonable best efforts to promptly supplement and amend any Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such Shelf
Registration or by any underwriter of such Registrable Notes, in each case, with
each Issuer's consent, which consent shall not be unreasonably withheld or
delayed.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Notes will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
each of the Issuers agrees to pay, as liquidated damages, additional interest on
the Registrable Notes ("Additional Interest") under the circumstances and to the
extent set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on
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or prior to the Filing Date or (B) notwithstanding that the Issuers have
consummated or will consummate an Exchange Offer, the Issuers are required
to file a Shelf Registration and such Shelf Registration is not filed on or
prior to the 60th day after delivery of the Shelf Notice, then, in the case
of subclause (A), commencing on the day after the Filing Date or, in the
case of subclause (B), commencing on the 61st day following delivery of the
Shelf Notice, Additional Interest shall accrue on the Registrable Notes
over and above the stated interest at a rate of 0.50% per annum for the
first 90 days immediately following the Filing Date or such 60th day, as
the case may be, such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective on or prior to the
Effectiveness Date applicable thereto or (B) notwithstanding that the
Issuers have consummated or will consummate an Exchange Offer, the Issuers
are required to file a Shelf Registration and such Shelf Registration is
not declared effective by the Commission on or prior to the applicable
Effectiveness Date, then, commencing on the day after such applicable
Effectiveness Date, Additional Interest shall accrue on the Registrable
Notes over and above the stated interest at a rate of 0.50% per annum for
the first 90 days immediately following the day after the applicable
Effectiveness Date, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 210th day after the Issue Date, (B) the Exchange
Registration Statement ceases to be effective at any time prior to
consummation of the Exchange Offer or (C) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration ceases
to be effective at any time during the Effectiveness Period, then
Additional Interest shall accrue on the Registrable Notes over and above
the stated interest at a rate of 0.50% per annum for the first 90 days
commencing on the (x) 210th day after the Issue Date in the case of (A)
above or (y) the day such Exchange Registration Statement or Shelf
Registration ceases to be effective in the case of (B) and (C) above, such
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Additional Interest rate increasing by an additional 0.25% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Registrable Notes
may not exceed in the aggregate 2.0% per annum; provided further that (1) upon
the filing of the Exchange Registration Statement or each Shelf Registration (in
the case of (i) above), (2) upon the effectiveness of the Exchange Registration
Statement or each Shelf Registration, as the case may be (in the case of (ii)
above), or (3) upon the exchange of Exchange Notes for all Registrable Notes
tendered (in the case of (iii)(A) above) or upon the effectiveness of an
Exchange Registration Statement or Shelf Registration which had ceased to remain
effective (in the case of (iii)(B) and (C) above), Additional Interest on any
Registrable Notes then accruing Additional Interest as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within five Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash on each regular interest payment date specified in the
Indenture (to the Holders of Registrable Notes of record on the regular record
date therefor (as specified in the Indenture) immediately preceding such dates),
commencing with the first such regular interest payment date occurring after any
such Additional Interest commences to accrue. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Notes subject thereto, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, each Issuer shall use their reasonable best efforts
to effect such registrations to permit the sale of such securities covered
thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Issuers hereunder, the Issuers shall:
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(a) Prepare and file with the Commission prior to the Filing Date, the
Exchange Registration Statement or if the Exchange Registration Statement
is not filed or is unavailable, a Shelf Registration as prescribed by
Section 2 or 3, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided that, if (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period and has advised the Company
that it is a Participating Broker-Dealer, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Issuers shall, if requested, furnish to and afford the Holders of the
Registrable Notes to be registered pursuant to such Shelf Registration or
each such Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed (in each case at least five
days prior to such filing). The Issuers shall not file any such
Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period
or the Applicable Period, as the case may be; cause the related Prospectus
to be supplemented by any Prospectus supplement required by applicable law,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any
-16-
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Issuers shall be deemed not to have used their reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if they voluntarily take any action with the purpose of,
and that would directly result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to sell Exchange
Notes not being able to sell such Registrable Notes or such Exchange Notes
during that period unless such action is required by applicable law, rule
or regulation or permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period from whom the Issuers have received written notice that
it will be a Participating Broker-Dealer, notify the selling Holders of
Registrable Notes, and each such Participating Broker-Dealer, their counsel
and the managing underwriters, if any, promptly (but in any event within
two Business Days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-
effective amendment, when the same has become effective (including in such
notice a written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Notes the representations and warranties of any Issuer
contained in any agreement (including any underwriting agreement
contemplated by Section 5(n) hereof) cease to be true and correct in any
material respect, (iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes
-17-
to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in, or amendments or
supplements to, such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that such notification need not specifically
identify such event if notification of the occurrence thereof would, in the
reasonable judgment of the Company, involve the disclosure of confidential
non-public information, and (vi) of the Issuers' determination that a post-
effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any
such order at the earliest possible date.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate
-18-
principal amount of the Registrable Notes being sold in connection with an
underwritten offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information or
revisions to information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders or their
counsel reasonably request to be included or made therein, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement, provided that the Company shall
not be required to take any action pursuant to this paragraph (e) that
would, in the opinion of counsel to the Company, violate applicable law or
any agreement to which the Company and its subsidiaries are then subject.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Registrable Notes and
to each such Participating Broker-Dealer who so requests and to counsel and
each managing underwriter, if any, without charge, one conformed copy of
the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer, deliver to each selling Holder of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, their
respective counsel, and the underwriters, if any, without charge, as many
copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each
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amendment or supplement thereto by each of the selling Holders of
Registrable Notes and each Participating Broker-Dealer, and the
underwriters or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto provided such use
complies with all applicable laws and regulations.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its reasonable best efforts to register or qualify,
and cooperate with the selling Holders of Registrable Notes and each such
Participating Broker-Dealer, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters, if any, reasonably request in writing; provided that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes
are offered pursuant to an underwritten offering, counsel to the
underwriters shall, at the cost and expense of the Issuers, perform the
Blue Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes by Participating
Broker-Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided that no Issuer shall be required to (A)
qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
-20-
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate
with the selling Holders of Registrable Notes, any Participating Broker-
Dealer and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Notes, in which case the Issuers will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare
and (subject to Section 5(a) hereof) file with the Commission, at the
Issuers' sole expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Issuers shall not be
required to amend or supplement a Registration Statement, any related
Prospectus or any document incorporated therein by
-21-
reference in the event that, and for a period not to exceed an aggregate of
60 days in any calendar year if, (i) an event occurs and is continuing as a
result of which the Shelf Registration would, in the Issuers' good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
(ii)(a) the Issuers determine in their good faith judgment that the
disclosure of such event at such time would have a material adverse effect
on the business, operations or prospects of the Issuers or (b) the
disclosure otherwise relates to a pending material business transaction
that has not yet been publicly disclosed.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with printed
certificates for the Registrable Notes or the Exchange Notes, as the case
may be, in a form eligible for deposit with the Depository Trust Company
and (ii) provide a CUSIP number for the Registrable Notes or the Exchange
Notes, as the case may be.
(m) In connection with an underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to the
underwriters, with respect to the business of the Issuers and their
subsidiaries and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and confirm
the same in writing if and when requested; (ii) use its reasonable best
efforts to obtain the opinion of counsel to the Issuers and updates thereof
in form and substance reasonably satisfactory to the managing underwriter
or underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of debt
securities similar to the Notes and such other matters as may be reasonably
requested by managing underwriters; (iii) use its reasonable best efforts
to obtain "cold comfort" letters and
-22-
updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of any Issuer or of any
business acquired by any Issuer for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of debt
securities similar to the Notes and such other matters as reasonably
requested by the managing underwriter or underwriters as permitted by the
statement on Auditing Standards No. 72; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section
7 hereof (or such other provisions and procedures acceptable to Holders of
a majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of
such Registrable Notes being sold, and each Participating Broker-Dealer,
any underwriter participating in any such disposition of Registrable Notes,
if any, and any attorney, accountant or other agent retained by any such
selling Holder, each Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of each Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of each Issuer and its
subsidiaries to supply all information reasonably requested by any such
Inspector
-23-
in connection with such Registration Statement. Records which an Issuer
determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid
or correct a misstatement or omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) the information in such
Records has been made generally available to the public other than as a
result of a disclosure or failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to, or
involving this Agreement, or any transactions contemplated hereby or
arising hereunder. Each selling Holder of such Registrable Notes and each
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of any Issuer unless and until such is made generally available
to the public. Each Inspector, each selling Holder of such Registrable
Notes and each Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction pursuant to clauses (ii) or (iv) of
the previous sentence or otherwise, give notice to the Issuers and allow
the Issuers to undertake appropriate action to obtain a protective order or
otherwise prevent disclosure of the Records deemed confidential at its
expense.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Offer or
the first Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts
to cause such trustee to execute, all documents as may be required to
effect such
-24-
changes, and all other forms and documents required to be filed
with the Commission to enable such indenture to be so qualified in a timely
manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 60 days after the end of any 12-month period (or 120 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or the
Private Exchange Notes, as the case may be, the Guarantee and the related
indenture constitute legally valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their respective terms.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuers (or to
such other Person as directed by the Company) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuers shall
xxxx, or caused to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such
-25-
Registrable Notes and their respective counsel in connection with any
filings required to be made with the NASD.
(t) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude
from such registration the Registrable Notes of any seller who fails to furnish
such information within a reasonable time after receiving such request. Each
seller as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, and, in each case,
dissemination of such Prospectus until such Holder's or Participating Broker-
Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Issuers shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) or (y) the Advice.
-26-
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers (other than underwriting discounts or
commissions) shall be borne by the Issuers whether or not the Exchange Offer or
a Shelf Registration is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B)
reasonable fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Notes or
Exchange Notes and determination of the eligibility of the Registrable Notes or
Exchange Notes for investment under the laws of such jurisdictions (x) where the
holders of Registrable Notes are located, in the case of the Exchange Notes, or
(y) as provided in Section 5(h) hereof, in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with the common depositary for Euroclear and Clearstream and of
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or by any Participating Broker-Dealer, as the case may be, (iii)
reasonable messenger, telephone and delivery expenses incurred in connection
with the Exchange Registration Statement and any Shelf Registration, (iv) fees
and disbursements of counsel for the Issuers and reasonable fees and
disbursements of one special counsel for the Initial Purchasers and the sellers
of Registrable Notes, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees, (vii)
Securities Act liability insurance, if any Issuer desires such insurance, (viii)
fees and expenses of all other Persons retained by the Issuers, (ix) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Issuers performing legal or accounting
duties), (x) the expense of any annual or special audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange,
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(xii) the fees and disbursements of underwriters, if any, customarily paid by
issuers or sellers of securities (but not including any underwriting discounts
or commissions or transfer taxes, legal fees or fees for the qualification of
the securities under Blue Sky laws, if any, attributable to the sale of the
Registrable Notes which discounts, commissions or taxes shall be paid by Holders
of such Registrable Notes) and (xiii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
7. Indemnification
(a) The Issuers jointly and severally agree to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer,
the officers, directors, employees and agents of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
reasonable expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements thereto) or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Issuers in writing by or on behalf of such
Participant expressly for use therein; provided, however, that the Issuers shall
not be liable if such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto to the extent that such
loss, liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Notes or Exchange Notes which are the subject thereof from such
Participant and it is established in the related proceeding that such
Participant failed
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to deliver or provide a copy of the Prospectus (as amended or supplemented) to
such Person with or prior to the confirmation of the sale of such Registrable
Notes or Exchange Notes sold to such Person if required by applicable law,
unless such failure to deliver or provide a copy of the Prospectus (as amended
or supplemented) was a result of noncompliance by the Issuers with Section 5 of
this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless each Issuer, its directors and officers and each Person who
controls each Issuer within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuers to each Participant, but only with reference to information
relating to such Participant furnished to the Issuers in writing by such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability
of any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or Exchange Notes
giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise unless and to the extent such failure results in
the forfeiture by the Indemnified Person of rights and defenses. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such
-29-
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts between
them. It is understood that, unless there is a conflict among Indemnified
Persons, the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
within a reasonable time after they are incurred. Any such separate firm for the
Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants and any such separate firm for the Issuers, their
respective directors, officers and such control Persons of the Issuers shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with such
consent or if there is a final non-appealable judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses actually incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its consent if
(i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; provided, however, that the Indemnifying
Person shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party or indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (B)
-30-
does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions (or alleged statements or omissions) that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers on the
one hand or by the Participants or such other Indemnified Person, as the case
may be, on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission and
any other equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to
-31-
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. 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.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
Each of the Issuers covenants that it will file the reports, if any,
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner
and, for so long as any Registrable Notes remain outstanding, if at any time it
is not required to file such reports, it will, upon the request of any Holder of
Registrable Notes, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. Each of the Issuers 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
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of
-32-
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by any Issuer of any of its
obligations under this Agreement, each Holder of Registrable Notes and each
Participating Broker-Dealer holding Exchange Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or, in the
case of an Initial Purchaser, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. Each Issuer agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuers has entered,
as of the date hereof, and none of the Issuers shall enter, after the date of
this Agreement, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. None of the
Issuers has entered and none of the issuers shall enter into any agreement with
respect to any of its securities which will grant to any Person piggy-back
rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. None of the Issuers
shall, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of (A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes and (B) in
circumstances that would adversely affect Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
-33-
provided, however, that Section 7 and this Section 10(d) may not be amended,
modified or supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Notes whose securities are being tendered pursuant to the Exchange
Offer or sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being tendered or being sold by such
Holders pursuant to such Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
1. if to a Holder of Registrable Notes or any Participating Broker-
Dealer, at the most current address of such Holder or Participating Broker-
Dealer, as the case may be, set forth on the records of the registrar under
the Indenture, with a copy in like manner to the Initial Purchasers as
follows:
CIBC WORLD MARKETS CORP.
BANC ONE CAPITAL MARKETS, INC.
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
2. if to the Initial Purchasers, at the address specified in Section
10(e)(1);
-34-
3. if to any Issuer, to such Issuer at the following address:
IFCO Systems N.V.
"Rivierstaete", Xxxxxxxxxx 000
0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Facsimile No.: 00-00-000-0000
Attention: Chief Financial Officer
and
IFCO Systems N.V.
c/o PalEx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy (which shall not constitute notice) to:
King & Spalding
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier guaranteeing overnight
delivery; and when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and the Holders; provided, however, that this Agreement shall not inure
to the benefit of or be binding upon a successor or assign of a Holder unless
and to the extent such successor or assign holds Registrable Notes.
-35-
(g) 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.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW. EACH OF THE
ISSUERS HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW
YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE
RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY. SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH ISSUER
AT THE ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST
SUCH ISSUER FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH
OF THE ISSUERS IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER COURTS TO
WHOSE JURISDICTION SUCH ISSUER IS OR MAY BE SUBJECT, BY SUIT UPON JUDGMENT.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would
-36-
have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(k) Notes Held by any Issuer or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by any Issuer or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(l) Third Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda among the Initial Purchasers on the
one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
(n) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each of the
Issuers (i) acknowledges that it has, by separate written instrument, designated
and appointed CT Corporation System ("CT") (and any successor entity) as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
federal or state court in The City of New York, Borough of Manhattan, State of
New York or brought under federal or state securities laws, and acknowledges
that CT has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT and written notice of said service to such Issuers in accordance
with Section 10(e) shall be deemed in effective service of process upon such
Issuers in any such suit or proceeding. Each of the Issuers further agrees to
take any reasonable action, including the execution
-37-
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT in full force and effect so long
as any of the Notes shall be outstanding; provided that the Issuers may, by
written notice to the Initial Purchasers, designate such additional or
alternative agent for service of process under this Section 10(n) that (i)
maintains an office located in the Borough of Manhattan, City of New York, State
of New York and (ii) is either (x) counsel for the Issuers or (y) a corporate
service company which acts as agent for service of process for other persons in
the ordinary course of its business. Such written notice shall identify the name
of such agent for service of process and the address of the office of such agent
for service of process in the Borough of Manhattan, City of New York, State of
New York.
(o) Judgment Currency. The Issuers shall, jointly and severally,
indemnify each Purchaser, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Notes, their respective affiliates,
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and each of
their respective officers, directors, employees and agents against any loss
incurred by such party as a result of any judgment or order being given or made
in favor of such party for any amount due under this Agreement and such judgment
or order being expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which such party on the date of
payment of such judgment or order is able to purchase United States dollars with
the amount of the Judgment Currency actually received by such party. The
foregoing indemnity shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "spot rate of exchange" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, United States dollars.
(p) Joint and Several Obligations. All of the obligations of the
Issuers hereunder shall be joint and several obligations of each of them.
[Signature pages follow]
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Company:
IFCO SYSTEMS N.V.
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
Guarantors:
IFCO EUROPE BETEILIGUNGS GMBH
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION
GMBH
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
IFCO FINANCE CONSULTING GMBH
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
IFCO SKANDINAVIEN A/S
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
X-0
XXXX XXXXXXXXXXXXXXXXXXXXXXX XXX & XX.
XXXXXXXXXXXXXXX KG
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
MTS OKOLOGISTIK VERWALTUNGS GMBH
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
SCHOELLER INTERNATIONAL LOGISTICS
BETEILIGUNGSGESELLSCHAFT MBH
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
IFCO ARGENTINA S.A.
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Chairman of the Board and
Authorized Signatory
PALEX, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
ACME BARREL COMPANY, INC.
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-3
BAY AREA PALLET COMPANY
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BLACK RIVER FOREST PRODUCTS, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CHARLOTTE STEEL DRUM CORPORATION
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CONSOLIDATED CONTAINER CORPORATION
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CONTAINER RESOURCES CORPORATION
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-4
CONTAINER SERVICES COMPANY NW, INC. (F/K/A
CONTAINER SERVICES COMPANY NW ACQUISITION, INC.)
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CONTAINER SERVICES COMPANY SW, INC. (F/K/A
CONTAINER SERVICES COMPANY SW ACQUISITION, INC.)
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXX PALLET CO., INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
DRUM SERVICES CO. OF FLORIDA
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ENVIRONMENTAL RECYCLERS OF COLORADO, INC.
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-5
XXXXXXX LUMBER INCORPORATED
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXXXX LUMBER COMPANY
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
INTERSTATE PALLET CO., INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
NEW LONDON PALLET, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PALEX CONTAINER SYSTEMS, INC.
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
PALEX-TEXAS, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
S-6
PALEX-TEXAS, L.P.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PALEX TEXAS HOLDINGS, INC.
By: /s/ XXXXX XXXXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
PALLET OUTLET COMPANY, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
RIDGE PALLETS, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SHEFFIELD LUMBER AND PALLET COMPANY, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SHIPSHEWANA PALLET CO., INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
S-7
SMG CORPORATION
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SONOMA PACIFIC COMPANY
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SOUTHERN PALLET, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
VALLEY CRATING AND PACKAGING, INC.
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
WESTERN CONTAINER LIMITED LIABILITY COMPANY
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-8
Initial Purchasers:
CIBC WORLD MARKETS CORP.
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ XXXX XXXXXX
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
