Exhibit 4.4
GFSI HOLDINGS, INC.
________________________________________
11-3/8% Senior Discount Notes due 2009
________________________________________
___________________
REGISTRATION RIGHTS AGREEMENT
dated as of september 17, 1997
___________________
Donaldson, Lufkin & Jenrette
Securities Corporation
This Registration Rights Agreement (this "Agreement") is made and
entered into as of September 17, 1997 by and between GFSI Holdings, Inc., a
Delaware corporation ("Holdings"), and Donaldson, Lufkin & Jenrette Securities
Corporation (the "Initial Purchaser"), which has agreed to purchase Holdings'
Units (the "Units") consisting of Holdings' 11-3/8% Subordinated Discount Notes
due 2009 and Holdings' 11-3/8% Preferred Stock due 2009 and exchangeable, at
Holdings' option, for Holdings' 11-3/8% Senior Discount Notes due 2009 (the
"Series A Notes") pursuant to the Purchase Agreement (as defined).
This Agreement is made pursuant to the Purchase Agreement, dated
September 12, 1997 (the "Purchase Agreement"), by and among Holdings, GFSI,
Inc., a Delaware corporation, the Selling Securityholders (as such term is
defined in the Purchase Agreement) and the Initial Purchaser. In order to
induce the Initial Purchaser to purchase the Units, Holdings has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchaser set forth in the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Notes: Series B Notes that are acquired
by a Broker-Dealer in the Exchange Offer in exchange for Series A Notes that
such Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Series A Notes acquired
directly from Holdings or any of its affiliates).
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Notes to be issued in the Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof and (c) the delivery by Holdings to the Registrar under the
Indenture of Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by Holders thereof
pursuant to the Exchange Offer.
Damages Payment Date: Each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by Holdings under the Act of the Series B
Notes pursuant to the Exchange Offer Registration Statement pursuant to which
Holdings shall offer the Holders of all outstanding Transfer Restricted Notes
the opportunity to exchange all such outstanding Transfer Restricted Notes for
Series B Notes in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Notes tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser proposes
to sell the Series A Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, and to certain "accredited
investors," as such term is defined in Rule 501(a)(1), (2), (3), (5) and (7) of
Regulation D under the Act.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date, between Holdings and
State Street Bank and Trust Company, as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person who
is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of Holdings relating to
(a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Notes pursuant to the Shelf
Registration Statement, in each case, (i) which is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Notes.
Series B Notes: Holdings' 11-3/8% Series B Senior Discount Notes due 2009
to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Series A Notes covered by a Shelf Registration
Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Transfer Restricted Notes: Each Note, until the earliest to occur of (a)
the date on which such Note is exchanged in the Exchange Offer and entitled to
be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Note has
been disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of Holdings are sold to an underwriter for reoffering to the
public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Notes (each, a
"Holder") whenever such Person owns Transfer Restricted Notes.
3. REGISTERED EXCHANGE OFFER
a. Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i)
below have been complied with), Holdings shall (i) cause to be
filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 60 days after the
Closing Date, the Exchange Offer Registration Statement, (ii) use
their best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but
in no event later than 120 days after the Closing Date, (iii) in
connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) file, if applicable, a post-
effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such
Exchange Offer Registration Statement, commence and Consummate
the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to
be offered in exchange for the Series A Notes that are Transfer
Restricted Notes and to permit sales of Broker-Dealer Transfer
Restricted Notes by Restricted Broker-Dealers as contemplated by
Section 3(c) below.
b. Holdings shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall
keep the Exchange Offer open, for a period of not less than the
minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
Business Days. Holdings shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No
securities other than the Notes shall be included in the Exchange
Offer Registration Statement. Holdings shall use its best
efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 30
Business Days thereafter.
(c) Holdings shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series A Notes that are
Transfer Restricted Notes and that were acquired for the account of such Broker-
Dealer as a result of market-making activities or other trading activities, may
exchange such Series A Notes (other than Transfer Restricted Notes acquired
directly from Holdings) pursuant to the Exchange Offer; however, such Broker-
Dealer may be deemed to be an "underwriter" within the meaning of the Act and
must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with its initial sale of each Series B Note received by such Broker-
Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such sales of Broker-
Dealer Transfer Restricted Notes by Restricted Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Notes held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy after the date of this
Agreement.
Holdings shall use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for sales of Broker-Dealer Transfer Restricted Notes
by Restricted Broker-Dealers, and to ensure that such Registration Statement
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 120 days from the date on which the Exchange Offer is Consummated.
Holdings shall promptly provide sufficient copies of the latest version of
such Prospectus to such Restricted Broker-Dealers upon such Restricted Broker-
Dealers' reasonable request, and in no event later than two Business Days after
such request, at any time during such 120-day period in order to facilitate such
sales.
4. SHELF REGISTRATION
a. Shelf Registration. If (i) Holdings is not required to file an
Exchange Offer Registration Statement with respect to the Series
B Notes because the Exchange Offer is not permitted by applicable
law (after the procedures set forth in Section 6(a)(i) below have
been complied with) or (ii) if any Holder of Transfer Restricted
Notes shall notify Holdings in writing within 20 Business Days
following the Consummation of the Exchange Offer that (A) such
Holder is prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not
resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from Holdings or one of its affiliates, then Holdings
shall (x) cause to be filed on or prior to the earliest of (1) 45
days after the date on which Holdings is notified by the
Commission or otherwise determines that it is not required to
file the Exchange Offer Registration Statement pursuant to clause
(i) above and (2) 45 days after the date on which Holdings
receives the notice specified in clause (ii) above, a shelf
registration statement pursuant to Rule 415 under the Act, (which
may be an amendment to the Exchange Offer Registration Statement
(in either event, the "Shelf Registration Statement")), relating
to all Transfer Restricted Notes the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof, and (y) use their best efforts to cause such Shelf
Registration Statement to become effective at the earliest
possible time, but in no event later than 120 days after the date
on which Holdings becomes obligated to file such Shelf
Registration Statement. If, after Holdings has filed an Exchange
Offer Registration Statement which satisfies the requirements of
Section 3(a) above, Holdings is required to file and make
effective a Shelf Registration Statement solely because the
Exchange Offer shall not be permitted under applicable federal
law, then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above.
Such an event shall have no effect on the requirements of clause
(y) above, or on the Effectiveness Target Date as defined in
Section 5 below. Holdings shall use its reasonable best efforts
to keep the Shelf Registration Statement discussed in this
Section 4(a) continuously effective, supplemented and amended as
required by and subject to the provisions of Sections 6(b) and
(c) hereof to the extent necessary to ensure that it is available
for sales of Transfer Restricted Notes by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that
it conforms with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least three years
(as extended pursuant to Section 6(c)(i)) following the date on
which such Shelf Registration Statement first becomes effective
under the Act or such shorter period that will terminate when all
Transfer Restricted Notes covered by the Shelf Registration
Statement have been sold pursuant thereto.
b. Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer
Restricted Notes may include any of its Transfer Restricted Notes
in any Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to Holdings in writing,
within 20 days after receipt of a request therefor, such
information specified in item 507 of Regulation S-K under the Act
for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder
of Transfer Restricted Notes shall be entitled to Liquidated
Damages pursuant to Section 5 hereof unless and until such Holder
shall have used its best efforts to provide all such information.
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to Holdings all information
required to be disclosed in order to make the information
previously furnished to Holdings by such Holder not materially
misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
not been Consummated within 30 Business Days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) subject to the
provisions of Section 6(c)(i) below, any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately (but in any event within five Business Days thereafter) by a post-
effective amendment to such Registration Statement that cures such failure and
that is itself declared effective within such five Business Day period, other
than, in the case of clause (iv) above, for such period in which such
Registration Statement shall cease to be effective as a result of post-
effective amendments to incorporate annual filings which Holdings is required to
file with the Commission or post-effective amendments not otherwise covered by
Section 6(c)(i) hereof, provided that Holdings in good faith attempts to cause
such Registration Statement to be declared effective as soon as reasonably
practicable (each such event referred to in clauses (i) through (iv), a
"Registration Default"), Holdings hereby agrees to pay to each Holder of
Transfer Restricted Notes (or, if the Notes have not been issued, the Units),
for the first 90-day period immediately following the occurrence of such
Registration Default, liquidated damages in an amount equal to $.05 per week per
$1,000 principal amount at maturity of Notes (or, if the Notes have not been
issued, the Units) constituting Transfer Restricted Notes (or if the Notes have
not been issued, the Units) held by such Holder for so long as the Registration
Default continues. The amount of liquidated damages payable to each Holder
shall increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Notes (or, if the Notes have not been issued, the Units)
held by such Holder for each subsequent 90-day period up to a maximum of $.40
per week per $1,000 in principal amount of Notes (or, if the Notes have not been
issued, the Units) constituting Transfer Restricted Notes (or, if the Notes have
not been issued, the Units) held by such Holder; provided, however, that (1)
upon filing of the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf
Registration Statement) to again be declared effective or made usable in the
case of (iv) above, the liquidated damages payable with respect to such Transfer
Restricted Notes (or, if the Notes have not been issued, the Units) as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid by Holdings to the Global Note
Holder (or, if the Notes have not been issued, the Global Unit Holder) by wire
transfer of immediately available funds or by federal funds check and to Holders
of Certificated Securities by wire transfer to the accounts specified by them or
by mailing checks to their registered addresses if no such accounts have been
specified on each Damages Payment Date. All obligations of Holdings set forth
in the preceding paragraph that are outstanding with respect to any Transfer
Restricted Note at the time such security ceases to be a Transfer Restricted
Note shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
6. REGISTRATION PROCEDURES
a. Exchange Offer Registration Statement. In connection with the
Exchange Offer, Holdings shall comply with all applicable
provisions of Section 6(c) below, shall use their best efforts to
effect such exchange and to permit the sale of Broker-Dealer
Transfer Restricted Notes being sold in accordance with the
intended method or methods of distribution thereof, and shall
comply with all of the following provisions:
i. If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers
such as the Exchange Offer, such that in the reasonable
opinion of counsel to Holdings there is a substantial
question as to whether the Exchange Offer is permitted by
applicable federal law or Commission policy, Holdings hereby
agrees to seek a no-action letter or other favorable
decision from the Commission allowing Holdings to Consummate
an Exchange Offer for such Series A Notes. Holdings hereby
agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of
Commission policy. In connection with the foregoing,
Holdings hereby agrees, however, to take all such other
actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to Holdings
setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff of such
submission.
ii. As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Notes shall furnish, upon the request of
Holdings, prior to the Consummation of the Exchange Offer, a
written representation to Holdings (which may be contained
in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is
not an affiliate of Holdings, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B
Notes in its ordinary course of business. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of
the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security
holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes
acquired by such Holder directly from Holdings or an
affiliate thereof.
iii. To the extent required by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement,
Holdings shall provide a supplemental letter to the
Commission (A) stating that Holdings is registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June
5, 1991) and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation
that Holdings has not entered into any arrangement or
understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the
best of Holdings' information and belief, each Holder
participating in the Exchange Offer is acquiring the Series
B Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate
in the distribution of the Series B Notes received in the
Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in
any no-action letter obtained pursuant to clause (i) above.
b. Shelf Registration Statement. In connection with the Shelf
Registration Statement, Holdings shall comply with all the
provisions of Section 6(c) below and shall use its best efforts
to effect such registration to permit the sale of the Transfer
Restricted Notes being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the
information furnished to Holdings pursuant to Section 4(b)
hereof), and pursuant thereto Holdings will prepare and file with
the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Notes
in accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance with
the provisions hereof.
c. General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement
to permit the sale or resale of Transfer Restricted Notes
(including, without limitation, any Exchange Offer Registration
Statement and the related Prospectus, to the extent that the same
are required to be available to permit sales of Broker-Dealer
Transfer Restricted Notes by Restricted Broker-Dealers), Holdings
shall:
i. use its reasonable efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3
or 4 of this Agreement, as applicable. Upon the occurrence
of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain
a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Notes
during the period required by this Agreement, Holdings shall
file promptly an appropriate amendment to such Registration
Statement, (1) in the case of clause (A), correcting any
such misstatement or omission, and (2) in the case of either
clause (A) or (B), use its reasonable efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter.
Notwithstanding the foregoing, if (A) the Board of Directors
of Holdings determines in good faith that it is in the best
interests of Holdings not to disclose the existence of or
facts surrounding any proposed or pending material corporate
transaction involving Holdings or its subsidiaries and (B)
Holdings notifies the Holders within two Business Days after
the Board of Directors makes such determination, Holdings
may allow the Shelf Registration Statement to fail to be
effective and usable as a result of such nondisclosure for
up to 60 days during the three-year period of effectiveness
required by Section 4 hereof, but in no event for any period
in excess of 30 consecutive days; provided, however, that
the three-year period referred to in Section 4 hereof during
which the Shelf Registration Statement is required to be
effective and usable shall be extended by the number of days
during which such registration statement was not effective
or usable pursuant to the foregoing provisions.
ii. prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as
may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3
or 4 hereof, or such shorter period as will terminate when
all Transfer Restricted Notes covered by such Registration
Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule_424 under the
Act, and to comply fully with Rules 424 and 430A, as
applicable, under the Act in a timely manner; and comply
with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
iii. advise the underwriter(s), if any, and selling Holders
promptly upon becoming aware and, if requested by such
Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Notes for offering
or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that
makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions
to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory
authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted
Notes under state securities or Blue Sky laws, Holdings
shall use its reasonable efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
iv. in the case of a Shelf Registration Statement, use
reasonable efforts to furnish to the Initial Purchaser, each
selling Holder named in any Registration Statement or
Prospectus and each of the underwriter(s) in connection with
such sale, if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing
of such Registration Statement) prior to filing, reasonably
respond to comments received from such persons, and make
Holdings' representatives available for discussion of such
documents and other customary due diligence matters.
v. subject to execution of confidentiality agreements that are
reasonably
satisfactory to Holdings as to the disclosure of any non-
public information obtained pursuant to this Section 6(c)(v)
and upon reasonable notice and at reasonable times, make
available for inspection at Holdings' offices located in
Lenexa, Kansas by the selling Holders, any managing
underwriter participating in any disposition pursuant to
such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such
underwriter(s), all financial and other records, pertinent
corporate documents and properties of Holdings and cause
Holdings' officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
vi. in the case of a Shelf Registration Statement, if requested
by any selling Holders or the underwriter(s) in connection
with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without
limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Notes, information
with respect to the principal amount of Transfer Restricted
Notes being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of
the Transfer Restricted Notes to be sold in such offering;
and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after
Holdings is notified of the matters reasonably requested to
be included in such Prospectus supplement or post-effective
amendment;
vii. in the case of a Shelf Registration Statement, furnish to
each selling Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least
one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
viii. deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons
reasonably may request; Holdings hereby consents to the use
(in accordance with law) of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and
each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement
thereto;
ix. enter into such customary agreements and make such customary
representations and warranties and take all such other
customary actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer
Restricted Notes pursuant to any Registration Statement
contemplated by this Agreement as may be reasonably
requested by any Holder of Transfer Restricted Notes or
underwriter in connection with any sale or resale pursuant
to any Registration Statement contemplated by this
Agreement, and in such connection, whether or not an
underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, Holdings
shall:
(A) furnish (or in the case of paragraphs (2) and (3), use
its best efforts to furnish) to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf Registration
Statement and to each Restricted Broker-Dealer upon Consummation of
the Exchange Offer:
(1) a certificate, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf of
Holdings by (x) the President or any Vice President and (y) a
principal financial or accounting officer of Holdings confirming,
as of the date thereof, the matters set forth in paragraphs (a)
through (c) of Section 9 of the Purchase Agreement and such other
similar matters as the Holders and/or underwriter(s) may
reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
Holdings, covering matters customarily covered in opinions
requested in Underwritten Offerings and dated the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from
Holdings' independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with Underwritten
Offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(g) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement the indemnification
provisions and procedures of Section_8 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders or the underwriter(s), if
any, to evidence compliance with clause_(A) above and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by Holdings pursuant to this
clause (x)._
The above shall be done at each closing under such underwriting
or similar agreement, as and to the extent required thereunder, and if at
any time the representations and warranties of Holdings contemplated in
(A)(1) above cease to be true and correct, Holdings shall so advise the
underwriter(s), if any, and selling Holders promptly and if requested by
such Persons, shall confirm such advice in writing;
x. prior to any public offering of Transfer Restricted Notes,
cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted
Notes under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if
any, may request and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Notes covered by
the applicable Registration Statement; provided, however,
that Holdings shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
xi. issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by
this Agreement, Series B Notes, having an aggregate
principal amount equal to the aggregate principal amount of
Series A Notes surrendered to Holdings by such Holder in
exchange therefor or being sold by such Holder; such Series
B Notes to be registered in the name of such Holder or in
the name of the purchaser(s) of such Notes, as the case may
be; in return, the Series A Notes held by such Holder shall
be surrendered to Holdings for cancellation;
xii. in connection with any sale of Transfer Restricted Notes
that will result in such securities no longer being Transfer
Restricted Notes, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer
Restricted Notes to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Notes in
such denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business
Days prior to such sale of Transfer Restricted Notes;
xiii. use its reasonable efforts to cause the disposition of the
Transfer Restricted Notes covered by the Registration
Statement to be registered with or approved by such other
U.S. governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of
such
Transfer Restricted Notes, subject to the proviso contained
in clause (xi) above;
xiv. subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or
have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Notes,
the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
xv. provide a CUSIP number for all Transfer Restricted Notes not
later than the effective date of a Registration Statement
covering such Transfer Restricted Notes and provide the
Trustee under the Indenture with printed certificates for
the Transfer Restricted Notes that are in a form eligible
for deposit with the Depository Trust Company;
xvi. cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD, and
use its reasonable efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Notes to
consummate the disposition of such Transfer Restricted
Notes;
xvii. otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to
any applicable Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
xviii. cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders of Notes to
effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its reasonable efforts
to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and
documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
xix. provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Note that, upon receipt of the notice referred to in Section
6(c)(i) or any notice from Holdings of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Notes pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) hereof, or until it is
advised in writing by Holdings that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (the "Advice"). If so directed by
Holdings, each Holder will deliver to Holdings (at Holdings' expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Notes that was current at the
time of receipt of either such notice._ In the event Holdings shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section_3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof or shall have received the
Advice.
7. REGISTRATION EXPENSES
a. All expenses incident to Holdings' performance of or compliance
with this Agreement will be borne by Holdings, regardless of
whether a Registration Statement becomes effective, including
without limitation: (i)_all registration and filing fees and
expenses (including filings made with the NASD and counsel fees
in connection therewith); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or
securities laws; (iii) all printing expenses of printing
(including printing certificates for the Series B Notes and
printing of Prospectuses); (iv) all fees and disbursements of
counsel for Holdings and, in accordance with Section 7(b) below,
the Holders of Transfer Restricted Notes; and (v) all fees and
disbursements of independent certified public accountants of
Holdings (including the expenses of any special audit and comfort
letters required by or incident to such performance).
Holdings will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by Holdings.
b. In connection with any Shelf Registration Statement required by
this Agreement, Holdings will reimburse the Holders of Transfer
Restricted Notes the distribution of which is being registered
pursuant to the Shelf Registration Statement for the reasonable
fees and disbursements of not more than one counsel chosen by the
Holders of a majority of the principal amount of such Transfer
Restricted Notes, which counsel shall be satisfactory to Holdings
in its sole discretion.
8. INDEMNIFICATION
(a) Holdings agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section_15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement 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, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or judgments (i) are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any of the Holders furnished in writing to Holdings by
or on behalf of any of the Holders expressly for use therein, (ii) with respect
to the preliminary prospectus, result from the fact that the Holder sold
Transfer Restricted Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the prospectus, as
amended or supplemented, if Holdings shall have previously furnished copies
thereof to the Holder in accordance with this Agreement and the prospectus, as
amended or supplemented, would have corrected such untrue statement or omission
or (iii) are a result of the use by the Indemnified Holder of any prospectus,
when, upon receipt of a notice from Holdings of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof contemplated by the last paragraph
of Section 6 hereof, the Indemnified Holder was not permitted to do so.
In case any action or proceeding shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought against
Holdings, such Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify Holdings in writing (provided, that
the failure to give such notice shall not relieve Holdings of its obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action but the fees and expenses of such
counsel shall be at the expense of the Indemnified Holder or such controlling
person unless (i) the employment of such counsel shall have been specifically
authorized in writing by Holdings, (ii) Holdings shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both the Indemnified Holder or such
controlling person and Holdings and the Indemnified Holder or such controlling
person shall have been advised in writing by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to Holdings (in which case Holdings shall not have the right to
assume the defense of such action on behalf of the Indemnified Holder or such
controlling person), it being understood, however, that Holdings shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders and be reasonably satisfactory to Holdings. Holdings
shall not be liable for any settlement of any such action or proceeding effected
without Holdings' prior written consent, which consent shall not be withheld
unreasonably, but if settled with Holdings' written consent, and Holdings agrees
to indemnify and hold harmless any Indemnified Holder from and against any loss
or liability by reason of such settlement. Holdings shall not, without the
prior written consent of each Indemnified Holder effect any settlement of any
pending or threatened proceeding in
respect of which any Indemnified Holder is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Holder, unless
such settlement includes an unconditional release of such Indemnified Holder
from all liability on claims that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Notes agrees, severally and not
jointly, to indemnify and hold harmless (i) Holdings, (ii) any person
controlling Holdings (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) and (iii) the directors, officers, partners, employees,
representatives, and agents of Holdings to the same extent as the foregoing
indemnity from Holdings to each of the Indemnified Holders, but only with
respect to information relating to such Holder furnished in writing by such
Holder expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against Holdings or its directors or officers or any
such controlling person in respect of which indemnity may be sought against a
Holder of Transfer Restricted Notes, such Holder shall have the rights and
duties given Holdings, and Holdings or its directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by
Holdings on the one hand and the Holders on the other hand from their sale of
Transfer Restricted Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect the relative fault of Holdings on the one hand and of the Indemnified
Holder on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative fault of Holdings on
the one hand and of the Indemnified Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by Holdings or by the Indemnified Holder and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and judgments referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 8(a), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
Holdings and each Holder of Transfer Restricted Notes agree that it would
not be just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, none of the Holders (and their related Indemnified Holders) shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the dollar amount of proceeds received by any such Holder upon the sale of
Transfer Restricted Notes
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Series A Notes held by each of
the Holders hereunder and not joint.
9. RULE 144A
Holdings hereby agrees with each Holder, for so long as any Transfer
Restricted Notes remain outstanding and during any period in which Holdings is
not subject to Section 13 or 15(d) of the Securities Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Notes, to any
Holder or beneficial owner of Transfer Restricted Notes in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted Notes
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Notes pursuant to Rule 144A.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Notes on the
basis provided in customary underwriting arrangements entered into in connection
therewith and (b) completes and executes all reasonable questionnaires, powers
of attorney, lock-up letters and other documents required under the terms of
such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
Subject to Holdings' consent, for any Underwritten Offering, the investment
banker or investment bankers and manager or managers for any Underwritten
Offering that will administer such offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes included
in such offering. Such investment bankers and managers are referred to herein
as the "underwriters."
12. MISCELLANEOUS
a. Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase
Agreement or granted by law, including recovery of liquidated or
other damages, will be entitled to specific performance of its
rights under this Agreement. Holdings agrees that monetary
damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
b. No Inconsistent Agreements. Holdings will not, on or after the
date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Holdings has not previously
entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Holdings'
securities under any agreement in effect on the date hereof.
c. Adjustments Affecting the Notes. Holdings will not take any
action, or voluntarily permit any change to occur, with respect
to the Notes that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
d. Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to
or departures from the provisions hereof may not be given unless
Holdings has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer
Restricted Notes. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Notes subject to such
Exchange Offer.
e. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to Holdings:
GFSI Holdings, Inc.
9700 Commerce Parkway
Lenexa, KS 66219
Telecopier No.: (913) 752-3346
Attention: Director of Finance
With copies to:
The Jordan Company
9 West 57th Street
40th Floor
New York, NY 10019
Telecopier No.: (212) 755-5263
Attention: Richard Caputo, Jr.
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Telecopier No.: (312) 701-7711
Attention: Phil Niehoff
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
f. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need
for an express assignment, subsequent Holders of Transfer
Restricted Notes; provided, however, that this Agreement shall
not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Notes directly from such
Holder at a time when such Holder could not transfer such
Transfer Restricted Notes pursuant to a Shelf Registration
Statement.
g. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement.
h. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the
meaning hereof.
i. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
j. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
k. Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights
granted by Holdings with respect to the Transfer Restricted
Notes. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject
matter
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GFSI HOLDINGS, INC.
By: /s/ Richard Caputo
-------------------------------
Name: A. Richard Caputo, Jr.
Title: Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Tyler Wolfram
--------------------
Name: Tyler Wolfram
Title: Vice President