Exhibit 4.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and among
American Seafoods Group LLC,
American Seafoods, Inc.,
the Guarantors listed on
Schedule A hereto
and
Banc of America Securities LLC,
BMO Xxxxxxx Xxxxx Corp.
and
Scotia Capital (USA) Inc.
Dated as of April 18, 2002
Exhibit 4.6
Registration Rights Agreement
This Registration Rights Agreement (this "Agreement") is made and
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entered into as of April 18, 2002, by and among American Seafoods Group LLC, a
Delaware limited liability company ("ASG LLC"), American Seafoods Inc., a
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Delaware corporation and wholly owned subsidiary of ASG LLC ("ASG Inc." and,
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together with ASG LLC, collectively, the "Companies"), the Guarantors listed on
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Schedule A hereto (the "Guarantors") and Banc of America Securities LLC, BMO
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Xxxxxxx Xxxxx Corp. and Scotia Capital (USA) Inc. (each an "Initial Purchaser"
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and, collectively, the "Initial Purchasers"), each of whom has agreed to
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purchase the Companies' 10 1/8% Senior Subordinated Notes due 2010 (the "Initial
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Notes") pursuant to the Purchase Agreement (as defined below).
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This Agreement is made pursuant to the Purchase Agreement, dated as of
April 4, 2002 (the "Purchase Agreement"), by and among the Companies, the
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Guarantors and the Initial Purchasers (i) for the benefit of each Initial
Purchaser and (ii) for the benefit of the holders from time to time of the Notes
(including each Initial Purchaser). In order to induce the Initial Purchasers to
purchase the Initial Notes, the Companies have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 5(g) of the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Advice: As defined in Section 6(d) hereof.
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Broker-Dealer: Any broker or dealer registered with the
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Commission under the Exchange Act.
Closing Date: The date of this Agreement.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for the
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purposes of this Agreement upon the occurrence of all of the following: (i)
the filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Companies to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes that were tendered by Holders
thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
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Effectiveness Target Date: As defined in Section 5.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The 10 1/8% Senior Subordinated Notes due 2010, of the
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same series under the Indenture as the Initial Notes, to be issued to
Holders in exchange for Transfer Restricted Securities pursuant to this
Agreement and the related guarantees.
Exchange Offer: The registration by the Companies under the Securities
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Act of the Exchange Notes pursuant to a Registration Statement pursuant to
which the Companies offer the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes in
an aggregate principal amount equal to the aggregate principal amount of
the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
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propose to sell the Initial Notes to any of the following: (i) certain
"qualified institutional buyers," as such term is defined in Rule 144A
under the Securities Act; (ii) non-U.S. persons, in accordance with
Regulation S under the Securities Act; and (iii) certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3)
and (7) of the Securities Act, respectively.
Holders: As defined in Section 2(b) hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated as of April 18, 2002, among ASG LLC,
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ASG Inc., each of, the Guarantors and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "Trustee"), pursuant to which the Notes are to
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be issued, as such Indenture is amended or supplemented from time to time
in accordance with its terms.
Initial Purchasers: As defined in the preamble hereto.
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Initial Notes: The 10 1/8% Senior Subordinated Notes due 2010, of the
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same series under the Indenture as the Exchange Notes, for so long as such
securities constitute Transfer Restricted Securities and the related
guarantees.
Initial Placement: The issuance and sale by the Companies of the
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Initial Notes to the Initial Purchasers pursuant to the Purchase Agreement.
NASD: The National Association of Securities Dealers, Inc.
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Notes: The Initial Notes and the Exchange Notes.
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Person: An individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
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amended or supplemented by any prospectus supplement and by all other
amendments thereto, including posteffective amendments, and all material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
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Registrar: As defined in the Indenture.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Companies
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relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to
the provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Requesting Holders: As defined in Section 6(c)(x) hereof.
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Securities Act: The Securities Act of 1933, as amended.
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Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Trust Indenture Act: The Trust Indenture Act of 1939 as in effect on
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the date of the Indenture.
Transfer Restricted Securities: Each Initial Note, until the earliest
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to occur of (a) the date on which such Initial Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the
Securities Act, (b) the date on which such Initial Note has been
effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and (c) the date on which
such Initial Note is distributed to the public pursuant to Rule 144 under
the Securities Act or by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Companies are sold to an underwriter for reoffering
to the public.
Section 2. Securities Subject To This Agreement
(a) Transfer Restricted Securities. The securities entitled to the benefits
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of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
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holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
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owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), the Companies and the Guarantors shall (i) cause to be
filed with the Commission not later than 120 days after the Closing Date, a
Registration Statement under the Securities Act relating to the Exchange Notes
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and the Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to become effective not later than 180 days after the
Closing Date, (iii) in connection with the foregoing (A) file all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration
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Statement to become effective, (B) file, if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Exchange Notes to be offered in
exchange for the Transfer Restricted Securities and to permit resales of Notes
held by BrokerDealers as contemplated by Section 3(c) below.
(b) The Companies and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 days after
the date notice of the Exchange Offer is mailed to the Holders. The Companies
shall cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Notes shall be included in the
Exchange Offer Registration Statement. The Companies and the Guarantors shall
use their reasonable best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 45 days after the effectiveness
of such Exchange Offer Registration Statement.
(c) The Companies shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Companies), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Companies and the Guarantors shall use their reasonable list
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Notes acquired by Broker-Dealers for their own accounts as a result of market
making activities or other trading activities, and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period ending on the earlier of (i) 180 days from the date on which the Exchange
Offer Registration Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities; provided, however, that any such
Broker-Dealer desiring the Companies to keep the Exchange Offer Registration
Statement continuously effective shall notify the Companies in writing that such
Broker-Dealer acquired Exchange Notes as a result of market-making or other
similar activities such that the Broker-Dealer would be required to deliver a
prospectus under the Securities Act upon a subsequent sale or other disposition
of the Exchange Notes.
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The Companies and the Guarantors shall provide sufficient copies of
the latest version of such Prospectus to Broker-Dealers promptly upon their
reasonable request at any time during such 180-day (or shorter as provided in
the foregoing sentence) period in order to facilitate such resales.
Section 4. Shelf Registration
(a) Shelf Registration. If (i) the Companies and the Guarantors are not
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required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), or (ii) any Holder of Transfer Restricted Securities shall
have notified the Companies in writing prior to the 20th day following
Consummation of the Exchange Offer that (A) such Holder is prohibited by
applicable law or Commission policy 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 that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a Broker-Dealer
and holds Initial Notes acquired directly from the Companies then, upon such
Holder's request, the Companies and the Guarantors shall
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
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Statement") on or prior to the earliest to occur of (1) the 30th day after
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the date on which the Companies determine that they are not required to
file the Exchange Offer Registration Statement, and (2) the 30th day after
the date on which the Companies receive notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) above (such earliest
date being the "Shelf Filing Deadline"), which Shelf Registration Statement
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shall provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to Section
4(c) hereof; and
(y) use their reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the later
of (1) the 180th day after the Closing Date or (2) the 45th day after the
Shelf Filing Deadline.
(b) The Companies and the Guarantors shall use their reasonable best
efforts to keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for resales of
Notes by the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of two years
following the effective date of such Shelf Registration Statement (or shorter
period that will terminate when all the Notes covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement or are no
longer restricted securities (as defined in Rule 144 under the Securities Act)).
(c) No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Companies in
writing, within 20 days after receipt of a request therefor, such information as
the Companies may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 5 unless and until such Holder shall have provided
all such information. By acquiring the Initial Notes each Holder agrees to
provide the indemnity set forth in Section 8(b) hereof with respect to the
information such Holder furnishes to the Companies in writing expressly for use
in any Shelf Registration Statement. The Companies shall not be obligated to
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supplement such Shelf Registration Statement after it has been declared
effective by the Commission more than one time quarterly solely to reflect
additional Holders. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Companies all information
required to be disclosed in order to make the information previously furnished
to the Companies by such Holder not materially misleading.
Section 5. Liquidated Damages
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
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Exchange Offer has not been Consummated within 45 days after the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement or (iv)
any Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself promptly declared effective; provided, that with respect to a
Shelf Registration Statement that the Companies are required to keep effective
pursuant to Section 4 hereof, the Companies may suspend such Shelf Registration
Statement in excess of the periods set forth in (iv) above so long as such
suspensions do not exceed 30 days in the aggregate in any consecutive
twelve-month period (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Companies and the Guarantors hereby jointly and
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severally agree to pay each Holder of Transfer Restricted Securities affected
thereby liquidated damages ("Liquidated Damages") during the period of one or
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more Registration Defaults in an amount equal to the product of one quarter of
one percent (0.25%) per annum and the principal amounts of the Transfer
Restricted Securities held by such Holder during the 120 day period immediately
following the occurrence of any Registration Default, with the rate used to
calculate such amount increasing by an additional one quarter of one percent
(0.25%) per annum on the principal amounts of such Transfer Restricted
Securities at the end of each subsequent 90 day period that any Liquidated
Damages continue to accrue, but in no event shall the rate at which Liquidated
Damages accrue exceed one percent (1.00%) per annum. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages payable with respect to the Transfer
Restricted Securities as a result of this paragraph shall cease.
Accrued Liquidated Damages shall be paid to Holders entitled thereto,
in the manner provided for the payment of interest in the Indenture, on each
Interest Payment Date, as more fully set forth in the Indenture and the Notes.
All obligations of the Companies and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Note shall
have been satisfied in full.
Section 6. Registration Procedures
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Companies and the Guarantors shall comply with all of the provisions
of Section 6(c) below, shall use their reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Companies there is
a question as to whether the Exchange Offer is permitted by applicable law, the
Companies and the Guarantors hereby
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agree to seek a no-action letter or other favorable decision from the Commission
allowing the Companies and the Guarantors to Consummate an Exchange Offer for
such Initial Notes. The Companies and the Guarantors each hereby agree to pursue
the issuance of such a decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a change of
Commission policy. The Companies and the Guarantors each hereby agree, however,
to (A) participate in telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to the Companies setting
forth the legal bases, if any, upon which such counsel has concluded that such
an Exchange Offer should be permitted and (C) diligently pursue a favorable
resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Companies, prior to the
Consummation thereof, a written representation to the Companies and the
Guarantors (which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of either of the Companies, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course
of business. In addition, all such Holders of Transfer Restricted Securities
shall otherwise cooperate in the Companies' preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
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and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
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in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the Companies.
(b) Shelf Registration Statement. In connection with the Shelf Registration
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Statement, the Companies and the Guarantors shall comply with all the provisions
of Section 6(c) below and shall use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Companies will as expeditiously as practicable prepare and
file with the Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and
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any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), each of the Companies and the Guarantors shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial statements
(including, if required by the Securities Act or any regulation thereunder,
financial statements of any Guarantor) for the period specified in Section 3 or
4 of this Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or
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(B) not to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Companies and the Guarantors
shall file promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its reasonable best efforts to cause
such amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, to confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, and (D)
of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Companies and the Guarantors shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish without charge to each of the Initial Purchasers, each
selling Holder named in any Shelf Registration Statement and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of such
Holders and underwriter(s) in connection with such sale, if any, for a period of
at least five business days, and the Companies will not file any such
Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated
by reference) to which an Initial Purchaser or Holder of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if any,
shall object, in their reasonable judgment, in writing within five business days
after the receipt thereof (such objection to be
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deemed timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser, a Holder or the underwriter(s),
if any, shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) with respect to a Shelf Registration Statement, promptly prior to
the filing of any document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such document to each
selling Holder named in any Registration Statement, and to the underwriter(s),
if any, make the Companies' representatives and representatives of the
Guarantors available for discussion of such document and other customary due
diligence matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any, reasonably may
request;
(vi) with respect to a Shelf Registration Statement, make available,
subject to appropriate confidentiality agreements, at reasonable times for
inspection by each selling Holder named in any Registration Statement, any
managing underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such selling
Holder, managing underwriter or any of the underwriter(s), all financial and
other records, pertinent corporate documents of the Companies and the Guarantors
and cause the Companies' and the Guarantors' officers, directors and employees
to supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement subsequent
to the filing thereof and prior to its effectiveness;
(vii) with respect to a Shelf Registration Statement, if requested by
selling Holders or the underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such Holders and to the
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with respect to
the principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Companies are notified of the matters
to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) with respect to a Shelf Registration Statement, furnish to each
selling Holder and to each of the underwriter(s), if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial statements and
schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) with respect to a Shelf Registration Statement, deliver to each
selling Holder and to each of the underwriter(s), if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the
Companies and the Guarantors hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and to each of
the underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto, subject to compliance by such Holder with the final
paragraph of this Section;
(x) in the case of a Shelf Registration Statement, upon request of
Holders who collectively hold an aggregate principal amount of Notes in excess
of 20% of the outstanding principal
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amount of Transfer Restricted Securities (the "Requesting Holders") enter into,
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and cause the Guarantors to enter into, such agreements (including an
underwriting agreement), and make, and cause the Guarantors to make, such
representations and warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to a Shelf Registration Statement, all to such
extent as may be requested by any Requesting Holder of Transfer Restricted
Securities or underwriter in connection with any sale or resale pursuant to a
Shelf Registration Statement; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Companies and the Guarantors shall:
(A) upon request of any Requesting Holder furnish (or in the case of
paragraphs (2) and (3) below, use their reasonable best efforts to cause to
be furnished) each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and as
are customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, signed by (y) the President or any Vice
President and (z) a principal financial or accounting officer of the
Companies and the Guarantors, confirming, as of the date thereof, the
matters set forth in paragraphs (i), (ii) and (iii) of Section 5 (e)
of the Purchase Agreement and such other matters as such parties may
request in their reasonable judgment;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Companies and the
Guarantors, covering the matters set forth in of Section 5(c) of the
Purchase Agreement and such other matters as such parties may request
in their reasonable judgment, and in any event including a statement
to the effect that such counsel has participated in conferences with
officers and other representatives of the Companies, representatives
of the independent public accountants for the Companies, the Initial
Purchasers' representatives and the Initial Purchasers' counsel in
connection with the preparation of such Registration Statement and the
related Prospectus and have considered the matters required to be
stated therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on
the basis of the foregoing, no facts came to such counsel's attention
that caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and contained an untrue
statement of a material fact or omitted 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. Without
limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in a
Shelf Registration Statement or the related Prospectus; and
(3) a customary comfort letter, dated the date of effectiveness
of the Shelf Registration Statement from the Companies' independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters in connection
with primary underwritten offerings, and affirming the
10
matters set forth in the comfort letters delivered pursuant to Section
5(a) of the Purchase Agreement, subject to the same conditions with
respect thereto and to the delivery thereof;
(B) deliver such other documents and certificates as may be requested
by such parties, in their reasonable judgment, to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Companies or
the Guarantors pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Companies and
the Guarantors contemplated in clause (A)(1) above cease to be true and correct,
the Companies or the Guarantors, as the case may be, shall so advise each
Initial Purchaser and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with, and cause the Guarantors to cooperate with, the selling Holders,
the underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that neither of the Companies and none of the Guarantors
shall be required to register or qualify as a foreign corporation where it is
not then so qualified or to take any action that would subject it to the service
of process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not then
so subject;
(xii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an aggregate
principal amount equal to the aggregate principal amount of Initial Notes
surrendered to the Companies by such Holder in exchange therefor or being sold
by such Holder; such Exchange Notes to be registered in the name of such Holder
or in the name of the purchaser(s) of such Notes, as the case may be; in return,
the Initial Notes held by such Holder shall be surrendered to the Companies for
cancellation;
(xiii) cooperate with, and cause the Guarantors to cooperate with, the
selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may request at least
two business days prior to any sale of Transfer Restricted Securities made by
such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by such
other U.S. federal, state or local governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
11
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its best efforts to cause such Registration Statement to become effective and
approved by such U.S. federal, state or local governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted
Securities;
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Companies' first fiscal quarter
commencing after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with, and
cause the Guarantors to cooperate with, the Trustee and the Holders of Notes to
effect such changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and cause the Guarantors execute, and use its best efforts to cause the
Trustee to execute, all documents that 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;
(xx) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 and Section 15(d)
of the Exchange Act if not obtainable from the Commission.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security that, upon receipt of any notice from the Companies
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xv) hereof, or until it is advised in writing (the
"Advice") by the Companies that the use of the Prospectus may be resumed, and
------
has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Companies,
each Holder will deliver to the Companies (at the Companies' expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of such notice. In the event the Companies shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xv) hereof or shall have received the Advice; however, no such
extension shall be taken into account in determining whether any Liquidated
Damages are due pursuant to Section 5
12
hereof or the amount of such Liquidated Damages, it being agreed that the
Companies' option to suspend use of a Registration Statement pursuant to this
paragraph for more than 5 business days shall be treated as a Registration
Default for purposes of Section 5.
Section 7. Registration Expenses
(a) All expenses incident to the Companies' or the Guarantors' performance
of or compliance with this Agreement will be borne by the Companies and/or the
Guarantors, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Companies, the Guarantors and,
subject to Section 7(b) below, one counsel for the Holders of Transfer
Restricted Securities chosen by the Holders of a majority of the outstanding
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Exchange Notes on a national securities exchange or
automated quotation system pursuant to the requirements thereof, (vi) all fees
and disbursements of independent certified public accountants of the Companies
and the Guarantors (including the expenses of any special audit and comfort
letters required by or incident to such performance); and (vii) all fees and
expenses relating to the qualification of the Indenture under the applicable
securities laws.
The Companies will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Companies.
(b) In connection with any Shelf Registration Statement required by this
Agreement, the Companies will reimburse the Initial Purchasers and the Holders
of Transfer Restricted Securities being registered pursuant to the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel, who shall be Shearman & Sterling unless another firm shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
Section 8. Indemnification
(a) The Companies agree and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
------------------
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
------------------
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with (x) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (y) any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or
13
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Companies
by any of the Holders expressly for use therein provided, however, that the
Companies will not be liable to any Initial Purchaser, Holder (in its capacity
as Holder) or underwriter (or any person who controls such party within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in any preliminary Prospectus to the
extent that the Companies shall sustain the burden of proving that any such
loss, liability, claim, damage or expense resulted from the fact that such
Purchaser, Holder (in its capacity as Holder), or underwriter, as the case may
be, sold Transfer Restricted Securities to a Person to whom such Purchaser,
Holder (in its capacity as Holder) or underwriter, as the case may be, failed to
send or give, at or prior to the written confirmation of sale of such Securities
a copy of the final Prospectus (as amended or supplemented) if the Companies
have previously furnished copies thereof (sufficiently in advance of the closing
of such sale to allow for distribution of the final Prospectus in a timely
manner) to such Purchaser, Holder (in its capacity as Holder) or underwriter, as
the case may be, and the loss, liability, claim, damage or expense of such
Purchaser, Holder (in its capacity as Holder) or underwriter, as the case may
be, resulted solely from an untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in or omitted from
such preliminary Prospectus which was corrected in the final Prospectus. This
indemnity agreement shall be in addition to any liability which the Companies
may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Companies or the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the
Companies and the Guarantors in writing (provided, however, that the failure to
give such notice shall not relieve the Companies or the Guarantors of their
respective obligations pursuant to this Agreement). The Companies shall be
liable for any settlement of any such action or proceeding effected with the
Companies' prior written consent, which consent shall not be withheld
unreasonably, and the Companies agree to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Companies. The Companies shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding. This indemnity will
be in addition to any liability that the Companies and the Guarantors may
otherwise have under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Companies and the Guarantors and
their respective directors and officers who sign a Registration Statement, and
any person controlling (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) the Companies, the Guarantors, and the
respective officers, directors, partners, employees, representatives and agents
of each such Person, to the same extent as the foregoing indemnity from the
Companies and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing to the Companies by such Holder expressly for use in any
Registration Statement. In case any action or proceeding shall be brought
against the Companies, the Guarantors or their directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder
of Transfer
14
Restricted Securities, such Holder shall have the rights and duties given to the
Companies, the Guarantors or their respective directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Securities giving rise to such
indemnification obligation. This indemnity will be in addition to any liability
that the Holders may otherwise have under this Agreement.
(c) In case any action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in and, to the extent
that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party in its
reasonable judgment; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have concluded in its reasonable judgment that a
conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party, in its reasonable judgment, to represent
the indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall be at
the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities, judgments, actions or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the Companies and the Guarantors, on the one hand, and the Holders,
on the other hand, from the Initial Placement (which in the case of the
Companies shall be deemed to be equal to the total gross proceeds from the
Initial Placement as set forth on the cover page of the Offering Memorandum),
the amount of Liquidated Damages which did not become payable as a result of the
filing of the Registration Statement resulting in such losses, claims, damages,
liabilities, judgments actions or expenses, and such Registration Statement, or
if such allocation is not permitted by applicable law, the relative fault of the
Companies and the Guarantors on the one hand, and of the Indemnified Holder, on
the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Companies and the
Guarantors on the one hand and of the Indemnified Holder on the other 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 Companies and the
Guarantors or by the Indemnified Holder and the parties' relative intent,
knowledge, access to
15
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Companies, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds received by any such Holder upon the sale of
the Initial Notes exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount
of Transfer Restricted Securities held by each of the Holders hereunder and not
joint.
Section 9. Rule 144A
The Companies and the Guarantors each hereby agree with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, and during
any period the Companies (i) are not subject to Section 13 or 15(d) of the
Exchange Act, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A, and (ii) are subject to Section 13 or 15(d) of the Exchange Act, to make
all filings required thereunder in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144A.
Section 10. Participation In Underwritten Registrations
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the terms hereof and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
Section 11. Selection Of Underwriters
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such
16
investment bankers and managers must be reasonably satisfactory to the Companies
and provided, further, that such Holders shall be responsible for all
underwriting commissions and discounts in connection therewith.
Section 12. Miscellaneous
(a) Remedies. The Companies and the Guarantors each hereby agree that
--------
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Companies will not, and will cause the
--------------------------
Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Other than this Agreement, neither of the Companies and none
of the Guarantors have entered into any agreement granting any registration
rights with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of either of the Companies' securities under
any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Companies will not take any
-------------------------------
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Companies have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Companies shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), facsimile or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
17
(ii) if to the Companies:
American Seafoods Group LLC
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if facsimiled; 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 specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; 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 acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning
hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Purchase Agreement,
----------------
and together with, the DTC Letter of Representations, the Securities, the
Indenture and the New Senior Secured Credit Facilities (each as defined in the
Purchase Agreement) is intended by the parties as a final expression of
18
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Companies with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN SEAFOODS GROUP LLC
By:
--------------------------------
Name:
Title:
AMERICAN SEAFOODS INC.
By:
--------------------------------
Name:
Title:
GUARANTORS:
AMERICAN CHALLENGER LLC
By:
--------------------------------
Name:
Title:
AMERICAN DYNASTY LLC
By:
--------------------------------
Name:
Title:
AMERICAN SEAFOODS COMPANY LLC
By:
--------------------------------
Name:
Title:
20
AMERICAN SEAFOODS INTERNATIONAL LLC
By:
--------------------------------
Name:
Title:
AMERICAN SEAFOODS PROCESSING LLC
By:
--------------------------------
Name:
Title:
AMERICAN TRIUMPH LLC
By:
--------------------------------
Name:
Title:
THE XXXXXX GROUP LLC
By:
--------------------------------
Name:
Title:
KATIE XXX LLC
By:
--------------------------------
Name:
Title:
21
NEW BEDFORD SEAFOODS LLC
By:
--------------------------------
Name:
Title:
NORTHERN EAGLE LLC
By:
--------------------------------
Name:
Title:
NORTHERN HAWK LLC
By:
--------------------------------
Name:
Title:
NORTHERN XXXXXX LLC
By:
--------------------------------
Name:
Title:
OCEAN ROVER LLC
By:
--------------------------------
Name:
Title:
22
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
BMO XXXXXXX XXXXX CORP.
SCOTIA CAPITAL (USA) INC.
By: BANC OF AMERICA SECURITIES LLC
By:
-------------------------------
Name:
Title:
Schedule A
GUARANTORS
Guarantor Jurisdiction of Organization
--------- ----------------------------
American Challenger LLC Delaware
American Dynasty LLC Delaware
American Seafoods Company LLC Delaware
American Seafoods International LLC Delaware
American Seafoods Processing LLC Delaware
American Triumph LLC Delaware
The Xxxxxx Group LLC Delaware
Katie Xxx LLC Delaware
New Bedford Seafoods LLC Delaware
Northern Eagle LLC Delaware
Northern Hawk LLC Delaware
Northern Xxxxxx LLC Delaware
Ocean Rover LLC Delaware
