Exhibit 4.6
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 16, 2003
By and Among
UNITED AGRI PRODUCTS, INC.
as Issuer,
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
and
UBS SECURITIES LLC,
XXXXXXX, XXXXX & CO.,
and
BEAR, XXXXXXX & CO. INC.
as Initial Purchasers
8 1/4% Senior Notes due 2011
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
December 16, 2003, by and among United Agri Products, Inc., a Delaware
corporation (the "Issuer"), and the guarantors listed on the signature pages
attached hereto (each a "Guarantor," and collectively, the "Guarantors"), on the
one hand, and UBS Securities LLC, Xxxxxxx, Xxxxx & Co. and Bear, Xxxxxxx & Co.
Inc. (each an "Initial Purchaser," and collectively, the "Initial Purchasers"),
on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated December 11, 2003, by and among the Issuer, the Guarantors and
the Initial Purchasers (the "Purchase Agreement"), relating to the offering of
$225.0 million aggregate principal amount of the Issuer's 8 1/4 % Senior Notes
due 2011 (the "Notes"). The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first introductory
paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Commission" shall mean the Securities and Exchange Commission.
"Day" shall mean a calendar day.
"Damages Payment Date" shall have the meaning set forth in Section
4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in Section
3(b) hereof.
"Effectiveness Target Period" shall have the meaning set forth in
Section 4(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"Holder" shall mean a Person who owns Registrable Securities, has a
beneficial interest in Registrable Securities issued in book-entry form or has
the right to acquire such Registrable Securities, whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
"Indenture" shall mean the Indenture, dated as of December 16, 2003,
by and among the Issuer, the Guarantors and JPMorgan Chase Bank, 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" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n) hereof.
"Issue Date" shall mean December 16, 2003, the date of original
issuance of the Notes.
"Issuer" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in Section 4(a)
hereof.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a) hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other legal entity.
"Prospectus" shall mean 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, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all information
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
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"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(ii) hereof is applicable upon original issuance and at all times subsequent
thereto, in each case until (i) the date on which such Note has been exchanged
by a Person other than a Participating Broker-Dealer for an Exchange Note in the
Exchange Offer, (ii) following the exchange by a Participating Broker-Dealer in
the Exchange Offer of a Note for an Exchange Note, the date on which such
Exchange Note is sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement, or (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under the
Securities Act.
"Registration Default" shall have the meaning set forth in Section
4(a) hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Issuer and the Guarantors covering any of the Registrable Notes
filed with the Commission under the Securities Act, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all information incorporated by reference therein.
"Requesting Participating Broker-Dealer" shall have the meaning set
forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated 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
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated 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" shall mean Rule 415 promulgated 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" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in Section 2(c)
hereof.
"Shelf Registration Statement" shall have the meaning set forth in
Section 3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Transactions" shall have the meaning set forth in Section 5 hereof.
"Trustee" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes.
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"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) The Issuer and the Guarantors shall (i) file a Registration
Statement (the "Exchange Offer Registration Statement") after the Issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use all commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 210 days after the Issue
Date, and (iii) unless the Exchange Offer would not be permitted by applicable
law or Commission policy, commence the Exchange Offer and use all commercially
reasonable efforts to consummate the Exchange Offer on or prior to 45 days (or
longer if required by federal securities laws) after the date on which the
Exchange Offer Registration Statement was declared effective. The Exchange Offer
shall be on the appropriate form permitting (i) registration of the Exchange
Notes to be offered in exchange for the Registrable Notes and (ii) resales of
Exchange Notes by Participating Broker-Dealers that tendered into the Exchange
Offer Registrable Notes that such Participating Broker-Dealer acquired for its
own account as a result of market making activities or other trading activities
(other than Registrable Notes acquired directly from the Company or any of its
Affiliates). Upon the Exchange Offer Registration Statement being declared
effective by the Commission, the Issuer and the Guarantors will offer the
Exchange Notes in exchange for surrender of the Notes. The Issuer and Guarantors
shall keep the Exchange Offer open for not less than 30 days (or longer if
required by federal securities laws) after the date notice of the Exchange Offer
is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuer and the Guarantors in writing that (i) any Exchange
Notes to be received by it will be acquired in the ordinary course of its
business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the provisions of the Securities Act, (iii)
it is not an affiliate (as defined in Rule 144) of the Issuer or any Guarantor
or, if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution 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, it will deliver a prospectus in connection with any resale of such
Exchange Notes and (vi) such Holder has full power and authority to transfer the
Notes in exchange for the Exchange Notes and that the Issuer and Guarantors will
acquire good and unencumbered title thereto free and clear of any liens,
restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Issuer, the Guarantors and the Initial Purchasers acknowledge
that the staff of the Commission has taken the position that any broker-dealer
that elects to exchange Notes that were acquired by such broker-dealer for its
own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes).
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The Issuer, the Guarantors and the Initial Purchasers also acknowledge
that the staff of the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuer and
Guarantors agree to use all commercially reasonable efforts to keep the Exchange
Offer Registration Statement continuously effective for a period not less than
180 days after the date on which the Exchange Offer Registration Statement is
declared effective, or such longer period if extended pursuant to the last
paragraph of Section 5 hereof (such period, the "Applicable Period"), or such
earlier date as all Requesting Participating Broker-Dealers shall have notified
the Issuer in writing that such Requesting Participating Broker-Dealers have
resold all Exchange Notes acquired in the Exchange Offer. The Company shall
provide sufficient copies of the latest version of such Prospectus to such
Requesting Participating Broker-Dealers, promptly upon request, and in no event
later than one day after such request, at any time during the Applicable Period;
provided that Participating Broker-Dealers shall not be authorized by the Issuer
to deliver, and shall not deliver, such Prospectus after the Applicable Period.
The Issuer shall include a plan of distribution in such Exchange Offer
Registration Statement that meets the requirements set forth in the preceding
paragraph.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note issued pursuant to the Exchange
Offer 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.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuer and Guarantors shall have no further registration
obligations other than the Issuer's and Guarantors' continuing registration
obligations with respect to (i) Exchange Notes held by Participating
Broker-Dealers and (ii) Notes or Exchange Notes as to which clause (c)(ii) of
this Section 2 applies.
In connection with the Exchange Offer, the Issuer and Guarantors
shall:
(1) mail or cause to be mailed to each Holder entitled to participate
in the Exchange Offer a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
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As soon as practicable after the close of the Exchange Offer if any,
the Issuer and Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange, provided that in
the case of any Registrable Notes held in global form by a depositary,
authentication and delivery to such depositary of one or more Exchange
Notes in global form in an equivalent principal amount thereto for the
account of such Holder in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
The Exchange Offer shall not be subject to any conditions, other than
(i) that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) that no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency with respect to the Exchange Offer, and no development shall have
occurred in any existing action or proceeding with respect to the Issuer and
Guarantors, in each case that would reasonably be expected to materially impair
the ability of the Issuer and the Guarantors to consummate the Exchange Offer,
(iii) that all governmental approvals shall have been obtained, which approvals
the Issuer and Guarantors deem necessary for the consummation of the Exchange
Offer and (iv) such other conditions as may be agreed upon by the Issuer and the
Initial Purchasers.
The Exchange Notes shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture (in either case,
with such changes as are necessary to comply with any requirements of the
Commission to effect or maintain the qualification thereof under the TIA) and
which, in either case, has been qualified under the TIA and shall provide that
the Exchange Notes shall not be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes or the Notes will have the right
to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer and
Guarantors to consummate the Exchange Offer, or (ii) any Holder of Registrable
Notes notifies the Company prior to the 20th Business Day following the
consummation of the Exchange Offer that (A) such Holder is prohibited by law or
the applicable interpretations of the staff of the Commission from participating
in the Exchange Offer or (B) such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
Prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales or (C) such Holder is
a broker-dealer and owns Notes acquired directly from the Company or an
affiliate of the Company (each such event referred to in clauses (i) and (ii) of
this sentence, a "Shelf Filing Event"), then the Issuer and Guarantors shall
file with the SEC a Shelf Registration Statement to cover resales of the Notes
by the Holders of the Notes who satisfy certain conditions set forth under
Section 3 hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
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(a) Shelf Registration. The Issuer and Guarantors 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 not exchanged
in the Exchange Offer and Exchange Notes as to which Section 2(c)(ii) is
applicable (the "Shelf Registration Statement"). The Issuer and the Guarantors
shall use all commercially reasonable efforts to file with the Commission the
Shelf Registration Statement as promptly as practicable, but no later than 30
days after such event as described in 2(c) above. The Shelf Registration
Statement shall be on Form S-1or 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 Issuer and Guarantors shall not permit any
securities other than the Registrable Notes to be included in the Shelf
Registration Statement.
(b) The Issuer and Guarantors shall use all commercially reasonable
efforts (x) to cause the Shelf Registration Statement to be declared effective
under the Securities Act on or prior to the later of 210 calendar days after the
Issue Date or 90 days after the Shelf Registration Statement is required to be
filed with the Commission and (y) to keep the Shelf Registration Statement
continuously effective under the Securities Act for the period ending on the
date which is two years from the Issue Date, subject to extension pursuant to
the penultimate paragraph of Section 5 hereof (the "Effectiveness Period"), or
such shorter period ending when all Registrable Notes covered by the Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement; provided, however, that (i)
the Effectiveness Period in respect of the Shelf Registration Statement shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein and (ii) the Issuer may suspend the effectiveness of
the Shelf Registration Statement by written notice to the Holders solely as a
result of the filing of a post-effective amendment to the Shelf Registration
Statement to incorporate annual audited financial information with respect to
the Issuer where such post-effective amendment is not yet effective and needs to
be declared effective to permit Holders to use the related Prospectus.
(c) Supplements and Amendments. The Issuer and the Guarantors agrees
to supplement or make amendments to the Shelf Registration Statement as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by (i) the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, (ii) a
Holder with respect to information relating to such Holder or (iii) by any
underwriter of such Registrable Notes.
Section 4. Liquidated Damages
(a) The Issuer, the Guarantors and the Initial Purchasers agree that
the Holders will suffer damages if the Issuer fails to fulfill its obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuer and
the Guarantors hereby jointly and severally agree that if:
(i) the Exchange Offer Registration Statement is not declared
effective on or prior to the 210th day following the Issue Date or, if that
day is not a Business Day, the next day that is a Business Day (the
"Effectiveness Target Date"),
(ii) the Exchange Offer is not consummated within 45 days after the
Effectiveness Target Date, or, if that day is not a Business Day, the next
day that is a Business Day; or
(iii) the Shelf Registration Statement is required to be filed but is
not declared effective on or prior to 210 calendar days after the Issue
Date or 90 days after the Shelf
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Registration Statement is required to be filed with the Commission, or, if
either such day is not a Business Day, the next day that is a Business Day
or is declared effective by such date but thereafter ceases to be effective
or usable at any time prior to the second anniversary of the Issue Date or,
if earlier, the date when all Notes have been disposed of thereunder,
except if the Shelf Registration Statement ceases to be effective or usable
as specifically permitted by Section 3(b) or the third to last paragraph of
Section 5 hereof.
(each such event referred to in clauses (i) through (iii) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum on the outstanding principal amount of the Notes for the first 90-day
period immediately following the occurrence of a Registration Default,
increasing by an additional 0.25% per annum on the outstanding principal amount
of the Notes with respect to each subsequent 90-day period up to a maximum
amount of additional interest of 1.0% per annum on the outstanding principal
amount of the Notes, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuer and the Guarantors without further registration under
the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
provided the information as required under Section 5 hereof) shall not be
entitled to Liquidated Damages with respect to a Registration Default that
pertains to the Shelf Registration Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii) or
(a)(iii) of this Section 4 will be payable in cash on the next scheduled
interest payment date (the "Damages Payment Date") to DTC or its nominee by wire
transfer of immediately available funds or by federal funds check and to holders
of Definitive Notes (as defined in the Indenture) by wire transfer to the
accounts specified by them or by mailing checks to their registered addresses if
no such accounts have been specified. The amount of Liquidated Damages for
Registrable Notes will be determined by multiplying the applicable rate of
Liquidated Damages by the aggregate principal amount of all such Registrable
Notes outstanding on the Damages Payment Date following such Registration
Default in the case of the first such payment of Liquidated Damages with respect
to a Registration Default (and thereafter at the next succeeding Damages Payment
Date until the cure of such Registration Default), and multiplying such product
by a fraction, the numerator of which is the number of days such Liquidated
Damages rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which is 360.
Notwithstanding the fact that any securities for which Liquidated Damages are
due cease to be Registrable Notes, all obligations of the Company and the
Guarantors to pay Liquidated Damages with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer and the Guarantors shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant
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thereto and in connection with any Registration Statement filed by the Issuer
and the Guarantors hereunder, the Issuer and each of the Guarantors shall:
(a) Prepare and file with the Commission the Registration Statement or
Registration Statements prescribed by Section 2 or 3 hereof, and use all
commercially reasonable efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; provided,
however, that if (1) such filing is pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuer and the Guarantors shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement or
each such Participating Broker-Dealer, as the case may be, its counsel (if
such counsel is known to the Issuer) and the managing underwriters, if any,
a reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five Business
Days prior to such filing or such later date as is reasonable under the
circumstances). The Issuer and the Guarantors shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, its counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis,
except for any Registration Statement, Prospectus, or any amendment or
supplement (a copy of which has been previously furnished as provided in
the preceding sentence) that counsel to the Issuer has advised the Issuer
is required to be filed to comply with applicable law.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; provided
that such requirement does not exist for a Delay Period pursuant to the
third to the last paragraph of this Section 5; 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) promulgated 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 securities
being sold by a Participating Broker-Dealer covered by any such Prospectus,
in each case, in accordance with the intended methods of distribution set
forth in such Registration Statement or Prospectus, as so amended.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from whom
the Issuer has received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders of Registrable Notes providing the information required by
this Section 5 below, or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
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Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Issuer, 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 or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the
Issuer contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m)(i) hereof cease to be true and correct in all
material respects, (iv) of the receipt by the 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 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 to the Issuer that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in or amendments or
supplements to such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and (vi) of the Issuer's determination that a post-effective
amendment to a Registration Statement would be appropriate; provided, that
in the case of clauses (iii), (iv), (v) and (vi), with respect to any
event, development or transaction permitted to be kept confidential
pursuant to the third to the last paragraph of this Section 5, the Issuer
and Guarantors shall not be required to describe such event, development or
transaction in the notice provided.
(d) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use all commercially
reasonable 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, as the case may be, for sale in any jurisdiction, and, if
any such order is issued, to use all commercially reasonable efforts to
obtain the withdrawal of any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the Holders
of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or any Participating Broker-Dealer,
as the case may be, (i) promptly incorporate in such Registration Statement
or Prospectus a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-
10
Dealer, as the case may be (based upon advice of counsel), determine is
reasonably necessary to be included therein and (ii) make all required
filings of such prospectus supplement or such post-effective amendment as
soon as practicable after the Issuer has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; provided, however, that the Issuer shall not be required to take
any action hereunder that would, in the written opinion of counsel to the
Issuer, violate applicable laws.
(f) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, its counsel and each managing
underwriter, if any, at the sole expense of the Issuer, 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 Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, its respective counsel, and the underwriters, if any, at
the sole expense of the Issuer, 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 to facilitate the public
sale or other disposition of the Registrable Notes or Exchange Notes, as
the case may be; and, subject to the last paragraph of this Section 5, the
Issuer and the Guarantors hereby consent to the use of such Prospectus and
each amendment or supplement thereto in accordance with applicable law by
each of the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use all commercially
reasonable efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Registrable Notes 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 reasonably
request; provided, however, that where Exchange Notes or Registrable Notes
are offered other than through an underwritten offering, the Issuer agrees
to use all commercially reasonable efforts to cause the Issuer's counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h); keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of such Exchange Notes or
Registrable
11
Notes covered by the applicable Registration Statement; provided, however,
that the Issuer shall not be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company
and enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or selling Holders may request at least five Business Days prior to
any sale of such Registrable Notes.
(j) Use all commercially reasonable efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes or Exchange Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuer and the Guarantors 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 Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuer, 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.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration Statement, 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) to the extent possible, make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuer and its subsidiaries, as then
conducted (including any ac-
12
quired business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same in writing if and when
requested; (ii) obtain the written opinions of counsel to the Issuer and
written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings; and in any event including a statement to the
effect that such counsel has participated in conferences with officers,
directors and employees of the Issuer and the Guarantors and the
independent accountants who examined the combined financial statements of
the Issuer and the Subsidiaries included in the applicable Registration
Statement in connection with the preparation of such Registration Statement
and reviewed such Registration Statement, although such counsel has not
independently verified the accuracy, completeness or fairness of the
statements contained therein, and the limitations inherent in the
examination made by such counsel and the knowledge available to such
counsel is such that the counsel is unable to assume, and such counsel does
not assume, any responsibility for such accuracy, completeness or fairness;
however, on the basis of such counsel's review of such Registration
Statement and its participation in conferences in connection with the
preparation of such Registration Statement, no facts came to such counsel's
attention that caused it to believe that the Registration Statement,
considered as a whole as of its date, contained an untrue statement of a
material fact, or omitted 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; (iii) obtain "cold comfort" letters and
updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Issuer (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or of any
business acquired by the Issuer for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; provided that such underwriter deliver to the
Company's independent accountant the representation letter, if any,
required by SAS 72, Letters for Underwriters and Certain Other Required
Parties (SAS 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; provided
that the Issuer shall not be required to provide indemnification to any
underwriter selected in accordance with the provisions of Section 9 hereof
with respect to information relating to such underwriter furnished in
writing to the Issuer by or on behalf of such underwriter expressly for
inclusion in such Registration Statement. 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 Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by a representative designated by the majority of the selling
Holders of such Registrable Notes being sold or such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by such selling Holders or such Participating
Broker-Dealers, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business
13
hours, all pertinent financial and other records, corporate documents and
instruments of the 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 the Issuer and its subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will keep the Records confidential and that it will not
disclose, or use in connection with any market transactions in violation of
any applicable securities laws, any Records that the Issuer determines, in
good faith, to be confidential and that it notifies the Inspectors in
writing are confidential unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is necessary or
advisable in the opinion of counsel for an Inspector in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or the Purchase Agreement, or any
transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records has been made generally
available to the public; provided, however, that (i) each Inspector shall
agree to use reasonable best efforts to provide notice to the Issuer of the
potential disclosure of any information by such Inspector pursuant to
clause (i), (ii) or (iii) of this sentence to permit the Issuer to obtain a
protective order (or waive, in the Issuer's discretion, the provisions of
this paragraph (n) or otherwise make the information generally available to
the public) and (ii) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with,
an impairment of or in derogation of the rights and interests of the Holder
or any Inspector.
(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) hereof 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 or Exchange Notes, as applicable, 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 all commercially reasonable efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the 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 the Issuer's 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 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes or Exchange 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 Issuer after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer use all commercially reasonable efforts to obtain an opinion of
counsel to the Issuer, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer
14
that the Exchange Notes, and the related indenture constitute legally valid
and binding obligations of the Issuer, enforceable against the Issuer in
accordance with its respective terms, subject to customary exceptions and
qualifications.
(r) If the Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Issuer (or to such other Person as
directed by the Issuer) in exchange for the Exchange Notes, xxxx, or cause
to be marked, on such Registrable Notes that such Registrable Notes are
being cancelled in exchange for the Exchange Notes; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use all commercially reasonable efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Issuer may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Issuer
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Issuer may, from time to time, reasonably
request. The Issuer may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuer shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make
any information previously furnished to the Issuer by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon
actual receipt of any notice from the Issuer (x) of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Issuer (the "Board of
Directors") has resolved that the Issuer has a bona fide business purpose for
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration Statement, in all cases, for a
period (a "Delay Period") expiring upon the earlier to occur of (i) in the case
of the immediately preceding clause (x), such Holder's or Participating
Broker-Dealer's receipt of the copies of
15
the supplemented or amended Prospectus contemplated by Section 5(k) hereof or
until it is advised in writing (the "Advice") by the Issuer that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto or (ii) in the case of the immediately preceding clause
(y), the date which is the earlier of (A) the date on which such business
purpose ceases to interfere with the Issuer's obligations to file or maintain
the effectiveness of any such Registration Statement pursuant to this Agreement
or (B) 90 days after the Issuer notifies the Holders of such good faith
determination. There shall not be more than 90 days of Delay Periods during any
12-month period. Each of the Effectiveness Period and the Applicable Period, if
applicable, shall be extended by the number of days during any Delay Period. Any
Delay Period will not alter the obligations of the Issuer to pay Liquidated
Damages under the circumstances set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that (A) during any Delay Period, each Holder
will discontinue disposition of such Notes or Exchange 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 (B) if so directed in
writing by the Issuer, such Holder shall dispose of all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Notes or Exchange Notes current at
the time of receipt of notice of a Delay Period.
Notwithstanding anything herein to the contrary, any party to this
Agreement (and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all Persons, without limitation of any kind,
the U.S. federal income tax treatment and tax structure of the transactions
contemplated by this Agreement (the "Transactions") and all materials of any
kind (including opinions or other tax analyses) that are provided to it relating
to such tax treatment and tax structure; provided, however, that neither party
(nor any employee, representative or other agent thereof) shall disclose any
information (a) that is not relevant to an understanding of the U.S. federal
income tax treatment or tax structure of the Transactions or (b) to the extent
such disclosure could result in a violation of any federal or state securities
laws.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer and the Guarantors (other than any
underwriting discounts or commissions, and transfer taxes payable on the resale
of the Notes) shall be borne by the Issuer, whether or not the Exchange Offer
Registration Statement or the Shelf Registration Statement 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) 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 an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration Statement or in the case of Exchange Notes to be
sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of printing
certificates for Registrable Notes or Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in
16
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuer and reasonable fees and disbursements of one special counsel for all of
the sellers of Registrable Notes pursuant to a Shelf Registration Statement
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuer desires
such insurance, (vii) fees and expenses of all other Persons retained by the
Issuer, (viii) internal expenses of the Issuer (including, without limitation,
all salaries and expenses of officers and employees of the Issuer performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement, but excluding the fees and expenses of counsel to
the underwriters or the Holders (other than fees and expenses set forth in
clauses (i)(B) and (iv) above). Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Registrable Notes sold by or on behalf of
it.
Section 7. Indemnification
(a) Each of the Issuer and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder of Registrable Notes and
each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, the
agents, employees, officers and directors of each Holder and each such
Participating Broker-Dealer and the agents, employees, officers and directors of
any such controlling Person (each, a "Participant") from and against any and all
losses, liabilities, claims, damages and expenses (including, but not limited
to, reasonable attorneys' fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, "Losses") to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (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 any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or are caused by, arise out
of or are 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 case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, provided that (i) the foregoing indemnity
shall not be available to any Participant insofar as such Losses are caused by,
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to such Participant furnished to the Issuer in writing by
or on behalf of such Participant expressly for use therein, and (ii) that the
foregoing indemnity with respect to any preliminary Prospectus shall not inure
to the benefit of any Participant from whom the Person asserting such Losses
purchased Registrable Notes to the extent that: (A) such Losses were finally
judicially determined to have resulted from (x) an untrue statement of a
material fact in the preliminary Prospectus or (y) the omission to state in the
preliminary Prospectus a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (B) the final Prospectus cured the defect giving rise to such
Losses; (C) the Issuer furnished sufficient copies of the final Prospectus to
such Participant on a timely basis to permit delivery of the final
17
Prospectus by such Participant to the person asserting such losses, claims,
damages or liabilities at or prior to the written confirmation of the sale of
the Registrable Notes to such person; and (D) such Participant failed to deliver
a copy of the final Prospectus to such person. This indemnity agreement will be
in addition to any liability that the Issuer may otherwise have, including, but
not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer and the Guarantors, each Person, if any, who
controls the Issuer or Guarantors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling Person from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (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 any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer shall
have furnished any amendments or supplements thereto) or any preliminary
Prospectus, or were caused by, arise out of or are 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 case of the Prospectus, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such Loss arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Issuer by or on behalf
of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded (based on advice of
counsel to such indemnified party or parties) that there may be defenses
available to it or them that are different from or additional to those available
to one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such reasonable
fees and expenses of counsel shall be borne by the indemnifying parties. In no
event shall the indemnifying party be liable for the fees and expenses of more
than one counsel (together with appropriate local counsel) at any time for all
indemnified parties in connection with any one action or separate but
substantially similar or related actions arising in the same jurisdiction out of
the same general allegations or circumstances. Any such separate firm for the
Participants shall be
18
designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Issuer and any such separate firm for the Issuer, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer shall be designated in writing by the Issuer and
shall be reasonable acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying 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. The relative benefits received by the Issuer
and the Guarantors, on the one hand, and each Participant, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
sale of the Notes to the Initial Purchasers (net of discounts and commissions
but before deducting expenses) received by the Issuer and the Guarantors are to
(y) the total net profit received by such Participant in connection with the
sale of the Registrable Notes. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer and Guarantors or
such Participant and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission.
(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
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for
19
contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuer and each Guarantor covenants that it will file the reports
required, if any, 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 in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Issuer is not required to file such
reports, it will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A under the Securities Act. The Issuer and each Guarantor
further covenants that for so long as any Registrable Notes remain outstanding
it will take such further action as any Holder of Registrable Notes may
reasonably request from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree 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)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer and the Guarantors have
not, as of the date hereof, and shall not have, after the date of this
Agreement, entered into any agreement with respect to any of its securities that
is inconsistent in any material respect with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not conflict
with and are not inconsistent with, in any material respect, the rights granted
to the holders of any of the Issuer's and the Guarantors' other issued and
outstanding securities under any such agreements. The Issuer and the Guarantors
have not entered and will not enter into any agreement with respect to any of
its securities which will grant to any Person piggy-back registration rights
with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer and the
Guarantors shall not, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Issuer and
20
the Guarantors and (II)(A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes and (B) in
circumstances that would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended,
modified or supplemented except pursuant to a written agreement duly signed and
delivered by the Issuer and the Guarantors and 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) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuer or the Guarantors, at the address as
follows:
United Agri Products, Inc.
0000 X. 0xx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000)
Attention: Chief Financial Officer
with a copy to
O'Melveny & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
(iii) if to the Initial Purchasers, at the address as follows:
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax number: (000) 000-0000
Attention: High Yield Capital Markets
21
With a copy at such address to the attention of Legal
Department, fax number (000) 000-0000
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; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that 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.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use all commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Securities Held by the 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 the Issuer, the Guarantors or any
of their respective affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement
22
may be enforced by such Persons. No other Person is intended to be, or shall be
construed as, a third-party beneficiary of this Agreement.
(l) Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(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 between the Holders on the one hand
and the Issuer and the Guarantors 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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED AGRI PRODUCTS, INC.,
By: /s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
Executive Vice President and Chief
Financial Officer
AG-CHEM, INC.
XXXXXX CHEMICALS, INC.
UAP 23, INC.
CROPMATE COMPANY
CSK ENTERPRISES, INC.
GAC 26, INC.
UAP 27, INC.
GENMARKS, INC.
GROWER SERVICE CORPORATION (NEW YORK)
HACO, INC.
LOVELAND INDUSTRIES, INC.
LOVELAND PRODUCTS, INC.
MIDWEST AGRICULTURE WAREHOUSE CO.
XXXXXXX CHEMICAL CO.
PLATTE CHEMICAL CO.
PUEBLO CHEMICAL & SUPPLY CO.
RAVAN PRODUCTS, INC.
S.E. ENTERPRISES, INC.
SNAKE RIVER CHEMICALS, INC.
TRANSBAS, INC.
TRI-RIVER CHEMICAL COMPANY, INC.
TRI-STATE CHEMICALS, INC.
TRI-STATE DELTA CHEMICALS, INC.
UAP RECEIVABLES CORPORATION
UAP 22, INC.
UAP/GA AG CHEM, INC.
UAPLP, INC.
UNITED AGRI PRODUCTS - FLORIDA, INC.
UNITED AGRI PRODUCTS FINANCIAL SERVICES, INC.
VERDICON, INC.
YVC, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
Executive Vice President and Chief
Financial Officer
UBS SECURITIES, LLC,
XXXXXXX, XXXXX & CO.
BEAR, XXXXXXX & CO. INC.
By: UBS Securities LLC
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Director
By: /s/ Xxxxx XxXxxxxxx
--------------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Director
