Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of February 21, 2001
By and Among
CONSTELLATION BRANDS, INC.,
as Issuer
and
THE GUARANTORS named herein
and
CHASE SECURITIES INC.,
SALOMON SMITH BARNEY INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION
and
SCOTIA CAPITAL (USA) INC.
as Initial Purchasers
$200,000,000
8% Senior Notes due 2008
TABLE OF CONTENTS
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Page
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1. Definitions......................................................... 1
2. Exchange Offer...................................................... 5
3. Shelf Registration.................................................. 8
4. Additional Interest................................................. 10
5. Registration Procedures............................................. 11
6. Registration Expenses............................................... 20
7. Indemnification..................................................... 21
8. Rules 144 and 144A.................................................. 23
9. Underwritten Registrations.......................................... 23
10. Miscellaneous....................................................... 24
(a) No Inconsistent Agreements..................................... 24
(b) Adjustments Affecting Registrable Notes........................ 24
(c) Amendments and Waivers......................................... 24
(d) Notices........................................................ 25
(e) Successors and Assigns......................................... 26
(f) Counterparts................................................... 26
(g) Headings....................................................... 26
(h) Governing Law; Jurisdiction.................................... 26
(i) Severability................................................... 27
(j) Securities Held by the Issuers or Their Affiliates............. 27
(k) Third Party Beneficiaries...................................... 27
(l) Entire Agreement............................................... 27
(m) Additional Amounts of Securities............................... 27
(i)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
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February 21, 2001 by and among CONSTELLATION BRANDS, INC., a Delaware
corporation (the "Company"), Batavia Wine Cellars, Inc., Canandaigua Wine
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Company, Inc., Canandaigua Europe Limited, Roberts Trading Corp., Polyphenolics,
Inc. and Barton Distillers Import Corp., each a New York corporation, Barton
Incorporated, Barton Brands, Ltd., Barton Financial Corporation and Franciscan
Vineyards, Inc., each a Delaware corporation, Barton Beers, Ltd., a Maryland
corporation, Barton Brands of California, Inc., a Connecticut corporation,
Barton Brands of Georgia, Inc., a Georgia corporation, Stevens Point Beverage
Co., a Wisconsin corporation, Monarch Import Company and Barton Canada, Ltd.,
each an Illinois corporation, Allberry, Inc., Cloud Peak Corporation, M.J. Lewis
Corp. and Mt. Veeder Corporation, each a California corporation, Canandaigua
Limited, a corporation organized under the laws of England and Wales, and
Canandaigua B.V., a corporation organized under the laws of The Netherlands
(collectively, the "Guarantors") and Chase Securities Inc., Salomon Smith Barney
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Inc., Credit Suisse First Boston Corporation and Scotia Capital (USA) Inc. (the
"Initial Purchasers")
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This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 15, 2001 (the "Purchase Agreement"), by and
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among the Company, the Guarantors and the Initial Purchasers, which provides for
the sale by the Company to the Initial Purchasers of an aggregate of
$200,000,000 aggregate principal amount of the Company's 8% Senior Notes due
2008 (the "Notes"). The Notes are being issued pursuant to the Indenture, dated
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as of February 21, 2001, (the "Indenture"), among the Company, Guarantors and
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The Bank of New York, as trustee (the "Trustee"). The Notes are guaranteed
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(the "Guarantees") by the Guarantors. The Notes and the Guarantees are
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collectively referred to herein as the "Securities".
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In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and any subsequent holder or holders of the Securities. The
execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
Additional Interest: See Section 4 hereof.
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Advice: See Section 5 hereof.
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Agreement: See the introductory paragraphs hereto.
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Applicable Period: See Section 2 hereof.
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Business Day: Any day that is not a Saturday, Sunday or a day on
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which banking institutions in New York are authorized or required by law to be
closed.
Company: See the introductory paragraphs hereto.
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Effectiveness Date: The 180th day after the Issue Date; provided,
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however, that with respect to any Shelf Registration, the Effectiveness Date
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shall be the 60th day after the Filing Date with respect thereto.
Effectiveness Period: See Section 3 hereof.
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Event Date: See Section 4 hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
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Exchange Offer: See Section 2 hereof.
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Exchange Offer Registration Statement: See Section 2 hereof.
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Filing Date: (A) If no Exchange Offer Registration Statement has been
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filed by the Issuer pursuant to this Agreement, the 90th day after the Issue
Date; and (B) with respect to a Shelf Registration Statement, the 60th day after
the delivery of a Shelf Notice as required pursuant to Section 2(c) hereof.
Guarantees: See introductory paragraphs hereto.
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Guarantors: See introductory paragraphs hereto.
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Holder: Any holder of a Registrable Note or Registrable Notes.
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Indemnified Person: See Section 7(c) hereof.
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Indemnifying Person: See Section 7(c) hereof.
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Indenture: See introductory paragraphs hereto.
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Initial Purchasers: See introductory paragraphs hereto.
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Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(n) hereof.
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Issue Date: February 21, 2001.
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NASD: See Section 5(s) hereof.
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Notes: See the introductory paragraphs hereto.
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Participant: See Section 7(a) hereof.
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Participating Broker-Dealer: See Section 2 hereof.
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Person: An individual, trustee, corporation, partnership, joint stock
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company, trust, unincorporated association, union, business association, firm or
other legal entity.
Private Exchange: See Section 2 hereof.
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Private Exchange Notes: See Section 2 hereof.
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Prospectus: The prospectus included in any Registration Statement
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(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 and any term sheet filed pursuant to Rule
434 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 material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
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Records: See Section 5(n) hereof.
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Registrable Notes: Each Security upon its original issuance and at
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all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note (and related Guarantees) upon original issuance
thereof and at all times subsequent thereto, until in the case of any such
Security, Exchange Note or Private Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than, with respect to
any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
applicable Exchange Offer Registration Statement) covering such Security,
Exchange Note or such Private Exchange Note has been declared effective by the
SEC and such Security, Exchange Note or such Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Security has been exchanged for an Exchange Note or
Exchange Notes (and related Guarantees) pursuant to an Exchange Offer which may
be resold without
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restriction under state and federal securities laws, (iii) such Security,
Exchange Note or Private Exchange Note (and related Guarantees), as the case may
be, ceases to be outstanding for purposes of the Indenture, or (iv) such
Security, Exchange Note or Private Exchange Note (and related Guarantees), as
the case may be, may be resold without restriction pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act.
Registration Statement: Any registration statement of the Company and
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the Guarantors that covers any of the Securities, the Exchange Notes (and
related Guarantees) or the Private Exchange Notes (and related Guarantees) filed
with the SEC under the Securities Act, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC 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: Rule 144A promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities: See the introductory paragraphs hereof.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
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Shelf Registration: See Section 3(b) hereof.
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Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Notes (and the related
Guarantees) and Private Exchange Notes (and the related Guarantees) (if any).
Underwritten registration or underwritten offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer. (a) The Company and the Guarantors shall file
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with the SEC, no later than the Filing Date, a Registration Statement (the
"Exchange Offer Registration Statement") on an appropriate registration form
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with respect to a registered offer (the "Exchange Offer") to exchange any and
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all of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company (guaranteed by the Guarantors) which are identical in
all material respects to the Securities (the "Exchange Notes"), except that (i)
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the Exchange Notes (and the Guarantors' Guarantees thereof) shall have been
registered pursuant to an effective Registration Statement under the Securities
Act, shall not contain provisions for Additional Interest, and shall contain no
restrictive legend thereon, (ii) interest thereon shall accrue from the last
date on which interest was paid on the Notes or, if no such interest has been
paid, from the Issue Date, and which are entitled to the benefits of the
Indenture or a trust indenture which is identical in all material respects to
the Indenture (other than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with any requirements of the SEC to
effect or maintain the qualification thereof under the TIA) and which, in either
case, has been qualified under the TIA. The Exchange Offer shall comply with
all applicable tender offer rules and regulations under the Exchange Act and
other applicable law. The Company and the Guarantors shall use their respective
best efforts to (x) cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for not less than 20 Business Days (or longer
if required by applicable law) after the date that notice of such Exchange Offer
is mailed to Holders; and (z) consummate such Exchange Offer on or prior to the
210th day following the Issue Date. For purposes of this Section 2(a) only, if
after the Exchange Offer Registration Statement is initially declared effective
by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, the Exchange Offer
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement during the period of such interference, until the Exchange
Offer may legally resume.
Each Holder who participates in the Exchange Offer will be required,
as a condition to its participation in the Exchange Offer, to represent to the
Company in writing (which may be contained in the applicable letter of
transmittal) that (i) any Exchange Notes received by it will be acquired in the
ordinary course of its business, (ii) at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes in violation of
the provisions of the Securities Act, (iii) such Holder is not an affiliate of
the Company or any Guarantor within the
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meaning of the Securities Act, (iv) if such Holder is not a broker-dealer, such
Holder is not engaged in, and does not intend to engage in, the distribution of
Exchange Notes, (v) if such Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Securities that were acquired as a
result of market-making or other trading activities, such Holder will deliver a
prospectus in connection with any resale of such Exchange Notes and (vi) such
Holder is not acting on behalf of any Persons who could not truthfully make the
foregoing representations.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
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mutandis, solely with respect to Registrable Notes that are Private Exchange
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Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange
Notes held by Participating Broker-Dealers, and the Company and the Guarantors
shall have no further obligation to register Registrable Notes (other than
Private Exchange Notes and other than in respect of any Exchange Notes as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Company and the Guarantors shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
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publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes in compliance with the Securities Act.
The Company and the Guarantors shall use their respective best efforts
to keep the Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such prospectus
to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes
covered thereby; provided, however, that such period shall not exceed 180 days
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after such Exchange Offer Registration Statement is declared effective (or such
longer period if extended pursuant to the last paragraph of Section 5 hereof)
(the "Applicable Period").
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If, prior to consummation of the Exchange Offer, an Initial Purchaser
holds any Notes acquired by them and having, or which are reasonably likely to
be determined to have, the status of an unsold allotment in an initial
distribution, the Company and the Guarantors upon the request of such Initial
Purchaser shall simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (each,
a "Private Exchange") for such Notes held by such Initial Purchaser, a like
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principal amount of debt securities of the Company (guaranteed by the
Guarantors) that are identical in all material respects to the Exchange Notes
(the "Private Exchange Notes") except for the placement of a restrictive legend
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on such Private Exchange Notes (and which are issued pursuant to the same
indenture as the Exchange Notes). If possible, the Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes.
In connection with each Exchange Offer, the Company and the 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 relating to such Exchange Offer,
together with an appropriate letter of transmittal and related documents;
(2) use their respective best efforts to keep the Exchange Offer open
for not less than 20 Business Days after the date that notice of the
Exchange Offer is mailed to Holders (or longer, if required by applicable
law);
(3) utilize the services of a depositary for the Exchange Offer which
may be the Trustee or an affiliate thereof;
(4) 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 remains open; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations of the United States.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
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(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Securities of such Holder so accepted
for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) no action or proceeding is
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Company and the Guarantors to proceed with
the Exchange Offer or the Private Exchange and no material adverse development
has occurred in any existing action or proceeding with respect to the Company or
the Guarantors that would materially impair the ability of the Company and the
Guarantors to consummate the Exchange Offer or the Private Exchange and (iii)
all governmental approvals have been obtained, which approvals the Company and
the Guarantors deem necessary for the consummation of the Exchange Offer or the
Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event has been qualified under the TIA or is
exempt from such qualification 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, the Private
Exchange Notes and the Securities shall vote and consent together on all matters
as one class and that none of the Exchange Notes, the Private Exchange Notes or
the Securities will have the right to vote or consent as a separate class on any
matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Company and the Guarantors are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 210 days after the Issue Date, (iii) any holder of Private
Exchange Notes so requests, or (iv) in the case of any Holder that participates
in the Exchange Offer, such Holder does not receive Exchange Notes on the date
of the exchange that may be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Company or any Guarantor within the meaning of the Securities
Act), in the case of each of clauses (i) to and including (iv) of this sentence,
then the Company and the Guarantors shall promptly deliver to the Holders and
the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf
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Registration pursuant to Section 3 hereof.
3. Shelf Registration. If at any time a Shelf Notice is delivered
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as contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company and the Guarantors shall file
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with the SEC 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, Private
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Exchange Notes and Exchange Notes to which Section 2(c)(iv) is applicable (the
"Initial Shelf Registration"). The Company and the Guarantors shall use their
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respective best efforts to file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. The Initial Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). Neither the Company nor
any Guarantor shall permit any debt securities or securities convertible into or
exchangeable for debt securities other than the Registrable Notes to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Company and the Guarantors shall use their respective best efforts
to cause each Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep such Initial
Shelf Registration continuously effective under the Securities Act until the
date which is two years from the Effectiveness Date, subject to extension
pursuant to the last paragraph of Section 5 hereof (the "Effectiveness Period"),
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or such shorter period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Notes covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf Registration has
been declared effective under the Securities Act; provided, however, that the
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Effectiveness Period in respect of the Initial Shelf Registration 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.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
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or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company and the Guarantors shall
use their respective reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend the Initial Shelf Registration in
a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
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the Company and the Guarantors shall use their respective best efforts to cause
the Subsequent Shelf Registration to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such Registration
Statement continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
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Initial Shelf Registration and any Subsequent Shelf Registration.
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(c) Supplements and Amendments. The Company and the Guarantors shall
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promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any underwriter
of such Registrable Notes.
4. Additional Interest. (a) The Company, the Guarantors and the
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Initial Purchasers agree that the Holders will suffer damages if the Company and
the Guarantors fail to fulfill their obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Company and the Guarantors agree to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest")
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under the circumstances and to the extent set forth below (each of which shall
be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed with the SEC within 90 days after
the Issue Date or (B) notwithstanding that the Company and the Guarantors
have consummated or will consummate an Exchange Offer, the Company and the
Guarantors are required to file a Shelf Registration and such Shelf
Registration is not filed on or prior to the Filing Date applicable
thereto, then, commencing on the day after any such Filing Date, Additional
Interest shall accrue on the principal amount of the Notes at a rate of
0.50% per annum for the first 90 days immediately following each such
Filing Date, such Additional Interest rate increasing by an additional
0.50% per annum at the beginning of each subsequent 90-day period; and
(ii) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on or prior to
the relevant Effectiveness Date or (B) notwithstanding that the Company and
the Guarantors have consummated or will consummate the Exchange Offer, the
Company and the Guarantors are required to file a Shelf Registration and
such Shelf Registration is not declared effective by the SEC on or prior to
the Effectiveness Date in respect of such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of 0.50% per
annum for the first 90 days immediately following the day after such
Effectiveness Date, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Company and the Guarantors have not exchanged
Exchange Notes for all Notes validly tendered in accordance with the terms
of the Exchange Offer on or prior to the 210th day after the Issue Date or
(B) if applicable, a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than after such time as all
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Notes have been disposed of thereunder), then Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.50% per annum
for the first 90 days commencing on the (x) 211th day after the Issue Date,
in the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above, such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that Additional Interest on the Notes may not accrue under
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more than one of the foregoing clauses (i), (ii) or (iii) at any one time and at
no time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate 1.5% per annum; provided, further, however, that (1) upon the filing
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of the Exchange Offer Registration Statement or a Shelf Registration as required
hereunder (in the case of clause (a)(i) of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 4), or (3) upon the exchange of Exchange Notes for all Notes tendered
(in the case of clause (a)(iii)(A) of this Section 4), or upon the
effectiveness of a Shelf Registration which had ceased to remain effective (in
the case of (a)(iii)(B) of this Section 4), Additional Interest on the Notes as
a result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue. It is understood and agreed that, notwithstanding any
provision to the contrary, so long as any Registrable Note is then covered by an
effective Shelf Registration Statement, no Additional Interest shall accrue on
such Registrable Security.
(b) The Company and the Guarantors shall notify the Trustee within
two business days after each and every date on which an event occurs in respect
of which Additional Interest is required to be paid (an "Event Date"). Any
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amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of
this Section 4 will be payable in cash semi-annually on each February 15 and
August 15 (to the holders of record on the February 1 and August 1 immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures. In connection with the filing of any
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Registration Statement pursuant to Sections 2 or 3 hereof, the Company 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 thereto and in connection with any Registration Statement
filed by the Company and the Guarantors hereunder the Company and the Guarantors
shall:
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(a) Prepare and file with the SEC prior to the applicable Filing Date,
a Registration Statement or Registration Statements as prescribed by Sections 2
or 3 hereof, and use their respective best 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
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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 Company 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, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at least
five business days prior to such filing, or such later date as is reasonable
under the circumstances). Neither the Company nor any Guarantor shall 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, their counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration 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; 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 each of them with respect to the disposition
of all securities covered by such Registration Statement as so amended or
described 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. The Company and the Guarantors shall be deemed
not to have used their respective best efforts to keep a Registration Statement
effective during the Effectiveness Period or the Applicable Period, as the case
may be, relating thereto if the Company or any Guarantor, as the case may be,
voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period unless (i) such action is required by
applicable law or (ii) such action is taken by each of them in good faith and
for valid business reasons (not including avoidance of any of its obligations
hereunder), including the acquisition or divestiture of assets.
-12-
(c) If (1) a Shelf Registration 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 Company has received
written notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business Days), and
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Company
and the Guarantors, 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 SEC 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 Company and the Guarantors contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m) hereof cease
to be true and correct in all material respects, (iv) of the receipt by the
Company or any Guarantor 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 to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making
of any changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
(vi) of the determination by the Company and the Guarantors that a post-
effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration 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 their respective
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reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use their respective reasonable best efforts to
obtain the withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering or any Participating Broker-Dealer, (i)
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such Holders,
any Participating Broker-Dealer or counsel for any of them reasonably determine
is necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment, and (iii) supplement or
make amendments to such Registration Statement.
(f) If (1) a Shelf Registration 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 and to each such Participating Broker-Dealer who so requests
and to counsel and each managing underwriter, if any, at the sole expense of the
Company and the Guarantors, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
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,
their respective counsel, and the underwriters, if any, at the sole expense of
the Company, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company and
the Guarantors hereby consent to the use of such Prospectus and each amendment
or supplement thereto 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
-14-
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 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, to use their respective reasonable best 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 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 held by
-------- -------
Participating Broker-Dealers or Registrable Notes are offered other than through
an underwritten offering, the Company and the Guarantors agree to cause their
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 the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, further, that neither the Company nor any Guarantor shall
-------- -------
be required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
reasonably 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 Holders may request.
(j) Use their respective reasonable best efforts to cause the
Registrable Notes covered by the 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,
except as may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company and the Guarantors will cooperate
in all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
-15-
(k) If(1) a Shelf Registration 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
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense of the
Company, 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 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 and an ISIN number for the Registrable
Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Securities
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company, the Guarantors and their respective
subsidiaries (including any acquired 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 Securities, and confirm the same in writing if
and when requested; (ii) obtain the written opinions of counsel to the Company
and the Guarantors 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 such other matters as may be reasonably
requested by the managing underwriter or underwriters; (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 Company and the Guarantors (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company or any Guarantor or of any business acquired by the Company or
any Guarantor for which financial statements and financial data are, or are
required to be, included or
-16-
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 and such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done as and to the
extent required by such underwriting agreement.
(n) If (1) a Shelf Registration 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 any selling Holder of
such Registrable Notes being sold, or each 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 any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
----------
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company, the
Guarantors and their respective 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 Company, the Guarantors and their respective subsidiaries to supply all
information reasonably requested by any such Inspector in connection with such
Registration Statement or Prospectus. Records which the Company determines, in
good faith, to be confidential and any Records which the Company notifies the
Inspectors in writing are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary or advisable to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is
necessary or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder; provided, however, that prior notice shall be
-------- -------
provided as soon as practicable to the Company of the potential disclosure of
any information by such Inspector pursuant to clauses (ii) or (iii) of this
sentence to permit the Company and the Guarantors to obtain a protective order
(or waive the provisions of this paragraph (n)) and that 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, or (iv) the
-17-
information in such Records has been made generally available to the public
other than as a result of a breach of this Agreement.
(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, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, reasonably cooperate with the trustee under any such indenture and
the Holders of the Registrable Notes, to effect such changes to such indenture
as may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their respective reasonable best 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
SEC to enable such indenture to be so qualified in a timely manner.
(p) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to their respective
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 are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(q) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company and the Guarantors, in a form
customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange Offer
or the Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Company (and the Guarantors, in the case of
the guarantees thereof) enforceable against the Company (and the Guarantors, in
the case of the guarantees thereof) in accordance with their terms, subject to
customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall mark, or cause
to be marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
-18-
(s) Reasonably 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 their respective reasonable best efforts to take all other
steps necessary or advisable to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The Company and the Guarantors may require each seller of Registrable
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes as the Company may, from time to time, reasonably request. The Company
may exclude from such registration the Registrable Notes of any seller if such
seller fails to furnish such information within 20 Business Days after receiving
such request. Each seller as to which any registration is being effected agrees
to furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company 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 Company or any Guarantor, 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 Company or such
Guarantor, 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 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 to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the Company that the use of the
------
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Company shall give any such
notice, the Applicable Period shall be extended by the number of days during
such periods from and
-19-
including the date of the giving of such notice to and including the date when
each seller of Registrable Notes covered by such Registration Statement or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses. All fees and expenses incident to the
---------------------
performance of or compliance with this Agreement by the Company and the
Guarantors shall be borne by the Company and the Guarantors, whether or not any
Exchange Offer or any Shelf Registration is filed or becomes effective or the
Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The 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
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or 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 of the Company and the
Guarantors, (iv) fees and disbursements of counsel for the Company and the
Guarantors and reasonable fees and disbursements of one special counsel for all
of the sellers of Registrable Notes (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 Company and the Guarantors desire such insurance, (vii) fees
and expenses of all other Persons retained by the Company and the Guarantors,
(viii) internal expenses of the Company and the Guarantors (including, without
limitation, all salaries and expenses of officers and employees of the Company
and the Guarantors performing legal or accounting duties), (ix) the expense of
any annual audit, (x) the fees and expenses incurred by the Company and the
Guarantors in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of these 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.
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7. Indemnification. The Company and each Guarantor, jointly and
---------------
severally, agree to indemnify and hold harmless each Initial Purchaser, its
officers and directors, each person, if any, who controls any Initial Purchaser
and each affiliate of any Initial Purchaser which assists such Initial Purchaser
in the distribution of the Securities, within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (as
amended or supplemented if the Issuers shall have furnished any amendments or
supplements thereto), or caused by 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, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
Initial Purchasers' Information.
Each Initial Purchaser agrees to indemnify and hold harmless each of
the Issuers, its directors, its officers and each person who controls such
Issuer within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Issuers to such Initial Purchaser, but only with reference to such losses,
claims, damages or liabilities which are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any Initial Purchasers' Information.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
------------------
notify the person or persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
-------------------
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to such Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
an Indemnifying Person and an Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are in-
-21-
curred. Any such separate firm for any Initial Purchaser, each affiliate of any
Initial Purchaser which assists such Initial Purchaser in the distribution of
the Securities and such control persons of any Initial Purchaser shall be
designated in writing by Chase Securities Inc., and any such separate firm for
the Issuers, their respective directors, their respective officers and such
control persons of any of the Issuers shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, such Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above 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 the Issuers on the one
hand and the Initial Purchasers on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering and sale of the Securities (before deducting expenses)
received by the Issuers and the total underwriting commissions received by the
Initial Purchasers, in each case as set forth in the table on the cover of the
Offering Memorandum. The relative fault of the Issuers on the one hand and the
Initial Purchasers 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 Issuers, on the one hand, or by the Initial Purchasers on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
Each of the Issuers and the Initial Purchasers agrees 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 account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the immedi-
-22-
ately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Initial Purchaser be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Initial Purchaser 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 remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Issuers, their respective officers or directors or any other
person controlling any of the Issuers and (iii) acceptance of and payment for
any of the Securities.
8. Rules 144 and 144A. The Company covenants that it will use its
------------------
reasonable best efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, for so long as any Registrable Notes
remain outstanding, if at any time the Company 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 Company further covenants
that, for so long as any Registrable Notes remain outstanding, it will use its
reasonable best efforts to take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required 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
SEC. Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Registrable Notes
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by
-23-
the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. Neither the
------------- --------------------------
Company nor any Guarantor has, as of the date hereof, and neither the Company
nor any Guarantor shall, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. 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 the Company's or any Guarantor's other
issued and outstanding securities under any such agreements. Neither the Company
nor any Guarantor will 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. Neither the Company nor
---------------------------------------
any Guarantor shall, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(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, otherwise than with the prior written
consent of (I) the Company and 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 without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
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
-24-
may be given by Holders of at least a majority in aggregate principal amount of
the Registrable Notes being sold by such Holders 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 facsimile:
(i) if to a Holder of Registrable Notes or any Participating Broker-
Dealer, at the most current address of such Holder or Participating Broker-
Dealer, as the case may be, set forth on the records of the registrar under the
Indenture.
(ii) if to the Company or any Guarantor at the address as follows:
Constellation Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450
Attention: General Counsel
Facsimile: (716) 218-2165
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
Facsimile: (312) 984-7700
-25-
(iii) if to the Initial Purchasers at the address as follows:
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Stephen B. Grant
Facsimile: (212) 270-7487
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Daniel J. Zubkoff
Facsimile: (212) 269-5420
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
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; Jurisdiction. 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, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
-26-
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(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 their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties hereto 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 Company 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 Company, the Guarantors or any
of their 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 of Registrable Notes and
-------------------------
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) 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 Company 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.
(m) Additional Amounts of Securities. The Securities are limited in
--------------------------------
aggregate principal amount to $200,000,000. Additional amounts of Securities may
be issued in one or more series from time to time under the Indenture
(collectively "Additional Notes") prior to the filing of any Registration
----------------
Statement. The Company and the Guarantors shall provide the registration rights
set forth under this Agreement to the Initial Purchasers and any subsequent
holder or holders of such Additional Notes and notwithstanding anything
contained herein may but are not obligated to include such Additional Notes in
any Registration Statement filed hereunder.
-27-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CONSTELLATION BRANDS, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Executive Vice President an
Chief Financial Officer
GUARANTORS
BATAVIA WINE CELLARS, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Treasurer
BARTON INCORPORATED
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS, LTD.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BEERS, LTD.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF GEORGIA, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON DISTILLERS IMPORT CORP.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
BARTON FINANCIAL CORPORATION
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
STEVENS POINT BEVERAGE CO.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA LIMITED
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Finance Director
(Principal Financial Officer
and Principal Accounting
Officer)
MONARCH IMPORT COMPANY
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA WINE COMPANY, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Treasurer
CANANDAIGUA EUROPE LIMITED
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Treasurer
ROBERTS TRADING CORP.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: President and Treasurer
POLYPHENOLICS, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
FRANCISCAN VINEYARDS, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
ALLBERRY, INC.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
CLOUD PEAK CORPORATION
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
M.J. LEWIS CORP.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
MT. VEEDER CORPORATION
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
CANANDAIGUA B.V.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Authorized Representative
BARTON CANADA, LTD.
By: /s/ Thomas S. Summer
--------------------
Name: Thomas S. Summer
Title: Vice President
INITIAL PURCHASERS
CHASE SECURITIES INC.
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
SCOTIA CAPITAL (USA) INC.
By: CHASE SECURITIES INC.
By: /s/Steven Tulip
-----------------
Name:
Title: