Exhibit 4.2
CFP HOLDINGS, INC. EXECUTION COPY
CFP GROUP, INC.
CUSTOM FOOD PRODUCTS, INC.
QF ACQUISITION CORP.
$115,000,000
11 5/8% SENIOR GUARANTEED NOTES DUE 2004
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 28, 1997
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255-0001
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CFP Holdings, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell (the "Initial Placement") to the Initial Purchasers, upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), its 11 5/8% Senior Guaranteed Notes Due 2004 (the "Notes"). The
Notes are to be unconditionally guaranteed on a senior unsecured basis by CFP
Group, Inc., a Delaware corporation (the "Parent Guarantor"), Custom Food
Products, Inc., a Delaware corporation, QF Acquisition Corp., a Delaware
corporation, and each of the future subsidiaries of the Company, as guarantors
(the "Subsidiary Guarantors" and, individually, each a "Subsidiary Guarantor"
and together with the Parent Guarantor, each a "Guarantor"). As an inducement to
the Initial Purchasers to enter into the Purchase Agreement and purchase the
Notes and in satisfaction of a condition to your obligations under the Purchase
Agreement, the Company and the Guarantors agree with you for the benefit of the
holders from time to time of the Notes (including the Initial Purchasers) (each
of the foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
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"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" means debt securities issued by the Company and
guaranteed by the Guarantors, identical in all material respects to the
Notes (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Notes or, if no such interest has been
paid, from January 28, 1997 and (ii) the interest rate step-up provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate, in the Exchange Notes), to be issued under the
Indenture.
"Exchange Offer" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the Notes, a like principal
amount of Exchange Notes.
"Exchange Offer Registration Period" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) three years
after effectiveness of the Exchange Offer Registration Statement,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement;
provided, however, that in the event that all resales of Exchange Notes
(including, subject to the time periods set forth herein, any resales by
Exchanging Dealers) covered by such Exchange Offer Registration Statement
have been made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Securities Act
with respect to the Exchange Offer, all amendments and supplements to such
registration statement, including post-
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effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantees" has the meaning set forth in the Purchase Agreement.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of the Closing Date, among the Company, CFP
Group, Inc., Custom Food Products, Inc. and QF Acquisition Corp. as
Guarantors, and the United States Trust Company of New York, as trustee,
as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the Purchase
Agreement.
"Losses" has the meaning set forth in Section 6(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes or
the
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Exchange Notes covered by such Registration Statement, and all amendments
and supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or
the Exchange Notes (including the Guarantees thereon) pursuant to the
provisions of this Agreement, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto, and all
material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof,
which covers some or all of the Notes or Exchange Notes, as applicable
(including the Guarantees thereon), on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Subsidiary Guarantors" has the meaning set forth in the preamble
hereto.
"Trustee" means the trustee with respect to the Notes or Exchange
Notes, as applicable, under the Indenture.
"underwriter" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
Private Exchange.
(a) The Company and the Guarantors shall prepare and, on or prior to
the 90th calendar day following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Exchange Offer.
The Company and the Guarantors
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shall use their best efforts (i) to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or prior to the
150th calendar day following the Closing Date and remain effective until the
closing of the Exchange Offer and (ii) to consummate the Exchange Offer on or
prior to the 180th calendar day following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such Holder (x) is
not an "affiliate" of the Company within the meaning of the Securities Act, (y)
is not a broker-dealer that acquired the Notes in a transaction other than as a
part of its market-making or other trading activities and (z) if such Holder is
not a broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to participate
in the distribution of the Exchange Notes) to resell such Exchange Notes from
and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Exchange Offer, the Company shall mail to
each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents, stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Note not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Note exchanged pursuant to the
Exchange Offer will be required to surrender such Note, together with the
enclosed letters of transmittal, to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in
the notice prior to the close of business on the last day of acceptance
for exchange; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last day of acceptance for
exchange, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name
of
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such Holder, the principal amount of Notes delivered for exchange and a
statement that such Holder is withdrawing his election to have such Notes
exchanged; and shall keep the Exchange Offer open for acceptance for not
less than 30 days and not more than 45 days (or longer if required by
applicable law) after the date notice thereof is mailed to the Holders;
utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York; and comply in
all respects with all applicable laws relating to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder Exchange Notes equal in principal amount to the Notes of such
Holder so accepted for exchange.
(e) The Initial Purchasers, the Company and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Exchanging Dealer
pursuant to the Exchange Offer in exchange for Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company and the Guarantors shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus included
therein by Exchanging Dealers in connection with sales of Exchange Notes
received pursuant to the Exchange Offer, as contemplated by Section 4(h)
below; provided, however, that the Company shall not be required to
maintain
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the effectiveness of the Exchange Offer Registration Statement for more
than 60 days following the consummation of the Exchange Offer unless the
Company has been notified in writing on or prior to the 60th day following
the consummation of the Exchange Offer by one or more Exchanging Dealers
that such Holder has received Exchange Notes as to which it will be
required to deliver a prospectus upon resale.
(f) In the event that the Initial Purchasers determine that they are
not eligible to participate in the Exchange Offer with respect to the exchange
of Notes constituting any portion of an unsold allotment, upon the effectiveness
of the Shelf Registration Statement as contemplated by Section 3 hereof and at
the request of the Initial Purchasers, the Company shall issue and deliver to
the Initial Purchasers, or to the party purchasing Exchange Notes registered
under the Shelf Registration Statement from the Initial Purchasers, in exchange
for such Notes, a like principal amount of Exchange Notes. The Company shall use
its best efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such Exchange Notes as for Exchange Notes issued pursuant to the
Exchange Offer.
(g) The Company and the Guarantors shall use their best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the Commission. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Notes in the
Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) for any reason
other than those specified clause (i) above, the Exchange Offer is not
consummated within 180 days of the Closing Date unless the Exchange Offer has
commenced, in which case, the Exchange Offer is not consummated within 30 days
after the date on which the Exchange Offer was commenced, or (iv) any Initial
Purchaser so requests with respect to Notes held by it following consummation of
the Exchange Offer, or (v) any Holder (other than the Initial Purchaser) is not
eligible to participate in the Exchange Offer or has participated in the
Exchange Offer and has received Exchange Notes that are not freely tradeable or
(vi) in the case where the Initial Purchasers participate in the Exchange Offer
or acquire Exchange Notes pursuant to Section 2(f) hereof, the Initial
Purchasers do not receive freely tradeable Exchange Notes in exchange for Notes
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchasers
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act in
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connection with sales of Exchange Notes acquired in exchange for such Notes
shall result in such Exchange Notes being not "freely tradeable" and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Notes acquired in the Exchange Offer in exchange for Notes
acquired as a result of market-making activities or other trading activities
shall not result in such Exchange Notes being not "freely tradeable"), the
following provisions shall apply:
(a) The Company and the Guarantors shall, as promptly as practicable
(but in any event on or prior to 60 days after such filing obligation
arises), file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Notes or the Exchange Notes, as applicable,
by the Holders from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement and Rule 415 under the Securities Act, provided,
that, with respect to Exchange Notes received by the Initial Purchasers in
exchange for Notes constituting any portion of an unsold allotment, the
Company and the Guarantors may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by
Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of its
obligations under this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(b) The Company and the Guarantors shall use their best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act as promptly as possible after filing such Shelf
Registration Statement pursuant to this Section 3 and to keep such Shelf
Registration Statement continuously effective in order to permit the
Prospectus contained therein to be usable by Holders for a period of three
years from the date the Shelf Registration Statement is declared effective
by the Commission or such shorter period that will terminate when all the
Notes or Exchange Notes, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (in
any such case, such period being called the "Shelf Registration Period").
The Company shall be deemed not to have used its best efforts to keep the
Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Notes covered
thereby not being able to offer and sell such Notes during that period,
unless (i) such action is required by applicable law or (ii) such action
is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
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4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Guarantors shall, within a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such representatives of
the Company and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment
of or supplement to a Registration Statement or a Prospectus or any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, the Holders
and their counsel) shall not have previously been advised and furnished a
copy or to which the Initial Purchasers or their counsel (and, in the case
of a Shelf Registration Statement, the Holders or their counsel) shall
reasonably object, except for any amendment or supplement or document (a
copy of which has been previously furnished to the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel)) which counsel to the Company and the
Guarantors shall advise the Company and the Guarantors is required in
order to comply with applicable law; each of the Initial Purchasers agrees
that, if it receives timely notice and drafts under this clause (a), it
will not take actions or make objections pursuant to this clause (a) such
that the Company and the Guarantors are unable to comply with their
obligations under Section 2.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Securities Act
and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and
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(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Notes covered
thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders
of Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in writing
to the Company a telephone or facsimile number and address for notices,
and, if requested by the Initial Purchasers or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making
of any changes in the Registration Statement or the Prospectus so
that, as of such date, the Registration Statement or the Prospectus
does not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be
accompanied by an
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instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company and the Guarantors shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered by any
Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request;
and the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Notes in connection
with the offering and sale of the Notes covered by the Prospectus or any
amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by
reference therein and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including those incorporated by reference).
(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging
Dealer may reasonably request for delivery by such Exchanging Dealer in
connection with a sale of Exchange Notes received by it pursuant to the
Exchange Offer; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by any such Exchanging Dealer, as
provided in Section (2)(e) above.
(i) Prior to the Exchange Offer or any other offering of Notes
pursuant to any Registration Statement, the Company and the Guarantors
shall register or qualify or cooperate with the Holders of Notes included
therein and their respective counsel in connection with the registration
or qualification of such Notes for offer and sale under the
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Securities or blue sky laws of such states as any such Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such states of the Notes covered
by such Registration statement; provided however, that the Company and the
Guarantors will not be required to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(j) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Notes to be
sold pursuant to any Registration Statement free of any restrictive
legends and in denominations of $1,000 or an integral multiple thereof and
registered in such names as Holders may request prior to sales of Notes
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company and the Guarantors shall
promptly prepare and file a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any
other required document so that, as thereafter delivered to purchasers of
the Notes included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading and, in the case of a Shelf Registration
Statement, notify the Holders to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the Trustee with printed certificates
for such Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act.
(n) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
timely manner.
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(o) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Notes as the
Company may from time to time reasonably require for inclusion in such
Registration Statement.
(p) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree should be included therein, and shall
make all required filings of such Prospectus supplement or post-effective
amendment promptly upon notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall enter into such customary agreements (including
underwriting agreements) and take all other appropriate actions in order
to expedite or to facilitate the registration or the disposition of any
Notes included therein, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 6 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company any and
its subsidiaries;
(ii) cause the Company's and the Guarantors' officers,
directors and employees to supply all relevant information
reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations and make such representatives of the Company and the
Guarantors as shall be reasonably requested by the Initial
Purchasers or Managing Underwriters, if any, available for
discussion of any such Registration Statement; provided, however,
that any information that is designated in writing by the Company or
the Guarantors, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent,
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unless such disclosure is made in connection with a court proceeding
or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality other than as a result of a disclosure
of such information by any such Holder, underwriter, attorney,
accountant or agent;
(iii) make such representations and warranties to the Holders
of Notes registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are customarily
covered in opinions requested in similar underwritten offerings and
such other matters as may be reasonably requested by such Holders
and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriters, if any, and
use reasonable efforts to have such letter addressed to the selling
Holders of Notes registered thereunder (to the extent consistent
with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (AICPA) ("SAS 72")), in
customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with similar underwritten
offerings, or if the provision of such "cold comfort" letters is not
permitted by SAS No. 72 or if requested by the Initial Purchasers or
its counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35 of
the AICPA, covering matters reasonably requested by the Initial
Purchasers or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily delivered in similar
offerings, including those to evidence compliance with Section 4(k)
and with any conditions contained in the underwriting agreement or
other agreement entered into by the Company.
15
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 4(r) shall be performed at (A) the effectiveness of such
Shelf Registration Statement and each post-effective amendment thereto and
(B) each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) The Company and the Guarantors shall, in the case of a Shelf
Registration, use their best efforts to cause all Notes to be listed on
any securities exchange or any automated quotation system on which similar
securities issued by the Company or the Parent Guarantor are then listed
if requested by the Majority Holders, to the extent such Notes satisfy
applicable listing requirements.
(t) The Company and the Guarantors shall use their best efforts to
cause the Exchange Notes or Notes, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the 1933 Act).
5. Registration Expenses; Remedies. (a) The Company and the
Guarantors shall bear all expenses incurred in connection with the performance
of their obligations under Sections 2, 3 and 4 hereof, including without
limitation: (i) all Commission, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Notes), (iii) all expenses of any persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, if any, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees
and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and the Guarantors and, in the case of
a Shelf Registration Statement, the fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and in the case of any
Exchange Offer Registration Statement, the reasonable fees and expenses of
counsel to the Initial Purchasers acting in connection therewith and (viii) the
fees and disbursements of the independent public accountants of the Company and
the Guarantors, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Notes by a Holder.
16
(b) The Notes provide that in the event that either (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
90th calendar day following the Closing Date or (ii) the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to the 180th calendar day following the Closing Date, the interest rate
borne by the Notes will be increased by 0.25% per annum following the first 30
days following the 90-day period referred to in clause (i) above or the first 90
days following the 180-day period referred to in clause (ii) above. Such
interest will be increased by an additional 0.25% per annum at the beginning of
each subsequent 30-day period in the case of clause (i) above or 90-day period
in the case of clause (ii) above; provided, however, that in no event will the
interest rate borne by the Notes be increased by more than 1.50% per annum. Upon
the filing of the Exchange Offer Registration Statement, the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, the interest rate borne by the Notes from the date of such filing,
consummation or effectiveness, as the case may be, will be reduced to the
original interest rate; provided, however, that, if after such reduction in
interest rate, a different event specified in clause (i) or (ii) above occurs,
the interest rate may again be increased pursuant to the foregoing provisions.
(c) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge that any
failure by the Company and the Guarantors to comply with their respective
obligations under Sections 2 and 3 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Company's and the Guarantors' obligations under Sections 2 and 3 hereof.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company and each Guarantor jointly and severally
agree to indemnify and hold harmless each Holder of Notes covered thereby
(including the Initial Purchasers and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer) the
directors, officers, employees and agents of such Holder and each person who
controls such Holder within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made)
17
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage or
liability (or action in respect thereof); provided, however, that the Company
and each Guarantor will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein; provided further, however, that the Company and each Guarantor will not
be liable in any case with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto to the extent that
any such loss, claim, damage or liability (or action in respect thereof)
resulted from the fact that any Holder sold Notes or Exchange Notes to a person
to whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus as then amended or supplemented in any case
where such delivery is required by the Securities Act, if the Company had
previously complied with the provisions of Section 4(c)(2) and 4(f) or 4(g)
hereof and if the untrue statement contained in or omission from such
preliminary Prospectus or Prospectus was corrected in the Prospectus or then
amended or supplemented. This indemnity agreement will be in addition to any
liability that the Company or any Guarantor may otherwise have.
The Company and each Guarantor also agree jointly and severally to
indemnify or contribute to Losses of, as provided in Section 6(d) hereof, any
underwriters of Notes registered under a Shelf Registration Statement, their
employees, officers, directors and agents and each person who controls such
underwriters on the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(q) hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless (i) the Company and each
Guarantor, (ii) each of the directors of the Company and each Guarantor, (iii)
each of the officers of the Company and the Guarantors who signs such
Registration Statement and (iv) each Person who controls the Company or any
Guarantor within the meaning of either the Securities Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company and each Guarantor
to each such Holder, but only with respect to written information furnished to
the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability that any such Holder may otherwise have.
18
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve the indemnifying party from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses, and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying
19
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement that resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Note or Exchange Note be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such Note,
or in the case of an Exchange Note, applicable to the Note that was exchangeable
into such Exchange Note, as set forth on the cover page of the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the Notes purchased by such
underwriter under the Registration Statement that resulted in such Losses. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Guarantors shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum.
Benefits received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions as set forth on the cover page of the
Final Memorandum, and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Notes or Exchange Notes, as applicable,
registered under the Securities Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement that resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation that did not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
or any Guarantor within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company or any Guarantor who shall have signed the
Registration Statement and each director of the Company and each Guarantor shall
have the same rights to contribution as the Company and each Guarantor, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any
20
Guarantor or any of the officers, directors or controlling persons referred to
in Section 6 hereof, and will survive the sale by a Holder of Notes covered by a
Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreement. The Company and the Guarantors have
not, as of the date hereof, entered into, nor shall any of them, on or after the
date hereof, enter into, any agreement that conflicts with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then - outstanding
aggregate principal amount of Notes (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of Exchange Notes); provided that, no
amendment, qualification, modification, supplement waiver or consent to any
departure from the provisions of Section 6 shall be effective against any Holder
of Notes unless consented to in writing by such Holder. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Notes are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of Notes
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to NationsBanc Capital Markets, Inc.;
(ii) if to the Initial Purchasers, at NationsBank Corporate Center,
000 Xxxxx Xxxxx Xxxxxx XXx-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000;
(iii) if to the Company or any Guarantor, c/o the Company at 0000
Xxxx Xxxxxxx Xxxxxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Chief Financial Officer, with copies to X'Xxxxxxxx Graev &
Karabell, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx X. Xxxxx.
21
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers, on the one hand, or the
Company or any Guarantor, on the other, by notice to the other party or parties
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or any Guarantor thereto, subsequent Holders of Notes and/or
Exchange Notes. The Company and the Guarantors hereby agree to extend the
benefits of this Agreement to any Holder of Notes and/or Exchange Notes and any
such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Notes or Exchange
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
22
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and you.
Very truly yours,
CFP HOLDINGS, INC.
By: ___________________________
Name:
Title:
CFP GROUP, INC.
By: ___________________________
Name:
Title:
CUSTOM FOOD PRODUCTS, INC.
By: ___________________________
Name:
Title:
QF ACQUISITION CORP.
By: ___________________________
Name:
Title:
23
The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC CAPITAL MARKETS, INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: NATIONSBANC CAPITAL MARKETS, INC.
By: __________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amend or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Notes where
such Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration Date
and ending on the close of business one year after the Expiration Date, it will
make this Prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until such date all
dealers effecting transactions in the Exchange Notes may be required to deliver
a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes for its
own account in exchange for Notes, it represents that the Notes to be exchanged
for the Exchange Notes were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
