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Exhibit 4.10  




 
 
 
REGISTRATION RIGHTS AGREEMENT  


 Dated as of April 30, 2002  


 among  


 DOLE FOOD COMPANY, INC.  


 and  


 BANC OF AMERICA SECURITIES LLC

CREDIT SUISSE FIRST BOSTON CORPORATION

AND

THE OTHER INITIAL PURCHASERS

REFERRED TO HEREIN  


 as the Initial Purchasers  









 
 

REGISTRATION RIGHTS AGREEMENT    
  


        REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of April 30, 2002 among DOLE FOOD COMPANY, INC., a Delaware corporation (the "Company"),
and BANC OF AMERICA SECURITIES LLC, CREDIT SUISSE FIRST BOSTON CORPORATION and the other parties referred to in Annex A hereto (each, an "Initial Purchaser" and collectively, the "Initial
Purchasers"). 


        This
Agreement is made pursuant to the Purchase Agreement dated April 25, 2002 by and among the Company and the Initial Purchasers (the "Purchase Agreement"), which provides for
the sale by the Company to the Initial Purchasers of $400,000,000 aggregate principal amount of the Company's 71/4% Senior Notes due 2009 (the "Securities"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the Initial Purchasers' obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees and assigns the registration rights set forth in this Agreement. 


        In
consideration of the foregoing, the parties hereto agree as follows: 


        1.    Definitions.    As used in this Agreement, the following capitalized defined terms shall have the following
meanings: 


        "1933 Act" shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated
thereunder. 


        "1934 Act" shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC
promulgated thereunder. 


        "Additional Interest" shall have the meaning set forth in Section 2(e) hereof. 


        "Closing Time" shall mean April 30, 2002. 



        "Depositary" shall mean The Depository Trust Company, or any other depositary appointed by the Company, including any agent thereof;  provided, however, that any such
depositary must at all times have an address in the Borough of Manhattan, The City of New York. 


        "Exchange Offer" shall mean the exchange offer by the Company of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof. 


        "Exchange Offer Registration" shall mean a registration of the Exchange Offer under the 1933 Act effected pursuant to Section 2(a)
hereof. 


        "Exchange Offer Registration Statement" shall mean a registration statement of the Company on Form S-4 covering the
Exchange Offer and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed
to be incorporated by reference therein. 


        "Exchange Securities" shall mean the 71/4% Senior Notes due 2009 of the Company to be issued under the Indenture with terms
identical to the Notes (except that (i) interest thereon shall accrue from the last date to which interest has been paid or duly provided for on the Securities or, if no such interest has been
paid or duly provided for, from the Interest Accrual Date, (ii) provisions relating to an increase in the stated rate of interest thereon upon the occurrence of a Registration Default shall be
eliminated, and (iii) the transfer restrictions, minimum purchase requirements and legends relating to restrictions on ownership and transfer thereof as a result of the issuance of the
Securities without registration under the 1933 Act shall be eliminated) and offered to Holders of Registrable Securities in exchange for Registrable Securities pursuant to the Exchange Offer. 


        "Holders" shall mean, as the context requires, (i) the Initial Purchasers, for so long as they own any Registrable Securities, and
each of their respective successors, assigns and direct and indirect transferees who become registered holders of Registrable Securities under the Indenture and (ii) each Participating
Broker-Dealer that holds Exchange Securities for so long as such Participating Broker- 





 




Dealer is required to deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities. 


        "Indenture" shall mean the Indenture dated as of July 15, 1993 between the Company and JP Morgan Chase Bank (formerly The Chase
Manhattan Bank and formerly Chemical Trust Company of California), as trustee, as supplemented by the Supplemental Indenture and as the same may be further amended or supplemented from time to time in
accordance with the terms thereof. 


        "Interest Accrual Date" means April 30, 2002. 


        "Initial Purchasers" shall have the meaning set forth in the preamble of this Agreement. 


        "Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of Registrable Securities outstanding;  provided, however, that whenever the
consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such term is defined in Rule 405 under the 1933 Act) shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage. 


        "NASD" shall mean the National Association of Securities Dealers, Inc. 


        "Notifying Broker-Dealer" shall have the meaning set forth in Section 3(f) hereof. 


        "Participating Broker-Dealer" shall have the meaning set forth in Section 3(f) hereof. 



        "Person" shall mean an individual, partnership, joint venture, limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof. 


        "Private Exchange Securities" shall have the meaning set forth in Section 2(a) hereof. 


        "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a prospectus, including post-effective amendments, and in each case including all material incorporated or deemed to
be incorporated by reference therein. 


        "Purchase Agreement" shall have the meaning set forth in the preamble to this Agreement. 


        "Registrable Securities" shall mean the Securities; provided,  however, that any Securities shall cease to be Registrable
Securities when (i) a Shelf Registration Statement with respect to the resale of such
Securities shall have been declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to such Shelf Registration Statement, (ii) such Securities shall have
been sold to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities shall have ceased to be
outstanding, (iv) such Securities shall have been exchanged for Exchange Securities which have been registered pursuant to the Exchange Offer Registration Statement upon consummation of the
Exchange Offer unless such Exchange Securities are held by Participating Broker-Dealers or otherwise are not freely tradable without any limitations or restrictions under the 1933 Act, in which case
such Exchange Securities will be deemed to be Registrable Securities until such time as such Exchange Securities are sold to a purchaser in whose hands such Exchange Securities are freely tradeable
without any limitations or restrictions under the 1933 Act or (v) such Securities shall have been exchanged for Private Exchange Securities pursuant to this Agreement, in which case such
Private Exchange Securities will be deemed to be Registrable Securities until such time as such Private Exchange Securities are sold to a purchaser in whose hands such Private Exchange Securities are
freely tradeable without any limitations or restrictions under the 1933 Act. 


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        "Registration Default" shall have the meaning set forth in Section 2(e) hereof. 



        "Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or NASD registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with qualification of any of
the Exchange Securities or Registrable Securities under state or other securities or blue sky laws and any filing with and review by the NASD), (iii) all expenses of any Persons in preparing,
printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements,
certificates representing the Securities, Private Exchange Securities (if any) or Exchange Securities and other documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) all fees and expenses incurred in connection with the listing, if any, of the Securities, Private Exchange Securities (if any) or Exchange Securities on
any securities exchange or exchanges or on any quotation system, (vi) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws,
(vii) the fees and disbursements of counsel for the Company and the fees and expenses of independent public accountants for the Company or for any other Person, business or assets whose
financial statements are included in any Registration Statement or Prospectus, including the expenses of any special audits or "cold comfort" letters required by or incident to such performance and
compliance, (viii) the fees and expenses of a "qualified independent underwriter", as defined by Conduct Rule 2720 of the NASD (if required by the NASD rules), and the fees and
disbursements of its counsel, (ix) the fees and expenses of the Trustee, any registrar, any depositary, any paying agent, any escrow agent or any custodian, in each case including fees and
disbursements of their
respective counsel, (x) the reasonable fees and expenses of counsel to the Initial Purchasers in connection with the Exchange Offer, (xi) the fees and disbursements, if any, of special
counsel representing the Holders of Registrable Securities designated pursuant to Section 2(c) below and (xii) in the case of an underwritten offering, any fees and disbursements of the
underwriters customarily paid by issuers or sellers of securities and the fees and expenses of any special experts retained by the Company in connection with any Registration Statement but excluding
(except as otherwise provided herein) fees of counsel to the underwriters or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder. 


        "Registration Statement" shall mean any registration statement of the Company relating to any offering of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement (including, without limitation, any Exchange Offer Registration Statement and any Shelf Registration Statement), and all amendments
and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein. 


        "SEC" shall mean the Securities and Exchange Commission or any successor thereto. 


        "Securities" shall have the meaning set forth in the preamble to this Agreement. 



        "Shelf Registration" shall mean a registration covering the resale of Securities or Private Exchange Securities (if any) effected pursuant
to Section 2(b) hereof. 


        "Shelf Registration Statement" shall mean a registration statement of the Company on Form S-3 filed pursuant to
Rule 415(a)(1)(i) under the 1933 Act covering the Shelf Registration, and all amendments and supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein. 


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        "Supplemental Indenture" means the supplemental indenture to the Indenture, dated as of April 30, 2002, between the Company and the
Trustee. 


        "TIA" shall mean the Trust Indenture Act of 1939, as amended from time to time, and the rules and regulations of the SEC promulgated
thereunder. 


        "Trustee" shall mean the trustee with respect to the Securities, the Private Exchange Securities (if any) and the Exchange Securities
under the Indenture. 


        For
purposes of this Agreement, (i) all references in this Agreement to any Registration Statement, preliminary prospectus or Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all references in this Agreement to financial
statements and schedules and other information which is "contained", "included", "disclosed" or "stated" in any Registration Statement, preliminary prospectus or Prospectus (or other references of
like import) shall be deemed to include all such financial statements and schedules and other information which is incorporated or deemed to be incorporated by reference in such Registration
Statement, preliminary prospectus or Prospectus, as the case may be, at the time of effectiveness or delivery, as the case may be; (iii) all references in this Agreement to amendments or
supplements to any Registration Statement, preliminary prospectus or Prospectus shall be deemed to include the filing of any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus or Prospectus, as the case may be, after the time effectiveness or delivery, as the case may be; (iv) all
references in this Agreement to Rule 144, Rule 144A or Rule 405 under the 1933 Act, and all references to any sections or subsections thereof or terms defined therein, shall in
each case include any successor provisions thereto; and (v) all references in this Agreement to days (but not to business days) shall mean calendar days. 


        2.    Registration Under the 1933 Act.    



        (a)  Exchange Offer Registration. The Company shall (A) file with the SEC on or prior to the 90th day after the Closing
Time an Exchange Offer Registration Statement covering the offer by the Company to the Holders to exchange all of the Registrable Securities for a like aggregate principal amount of Exchange
Securities, (B) use its best efforts to cause such Exchange Offer Registration Statement to be declared effective by the SEC no later than the 150th day after the Closing Time, (C) use
its best efforts to cause such Registration Statement to remain effective until the closing of the Exchange Offer and (D) use its best efforts to consummate the Exchange Offer no later than
45 days after the effective date of the Exchange Offer Registration Statement. Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder
(1) is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act or an Initial Purchaser holding Securities acquired by it and having the status of an unsold
allotment in the initial offering and sale of Securities pursuant to the Purchase Agreement, (2) acquires the Exchange Securities in the ordinary course of such Holder's business and
(3) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of distributing such Exchange Securities) to trade such Exchange Securities from
and after their receipt without any limitations or restrictions under the 1933 Act or under the securities or blue sky laws of the states of the United States. 




        In
connection with the Exchange Offer, the Company shall: 




          (i)  promptly
mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and
related documents; 




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        (ii)  keep
the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders and,
during the Exchange Offer, offer to all Holders who are eligible to participate in the Exchange Offer the opportunity to exchange their Registrable Securities for Exchange Securities; 


        (iii)  use
the services of a depositary with an address in the Borough of Manhattan, The City of New York, for the Exchange Offer; 


        (iv)  permit
Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last business day on which the
Exchange Offer shall remain open, by sending to the institution specified in the Prospectus or the related letter of transmittal or related documents a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing its election to have such
Securities exchanged; 


        (v)  notify
each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and 


        (vi)  otherwise
comply in all material respects with all applicable laws relating to the Exchange Offer. 





        If,
at or prior to the consummation of the Exchange Offer, any Initial Purchaser holds any Securities acquired by it and having the status of an unsold allotment in the initial offering
and sale of Securities pursuant to the Purchase Agreement, the Company shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange
Offer to other Holders, issue and deliver to such Initial Purchaser in exchange for such Securities a like principal amount of debt securities of the Company ("Private Exchange Securities") to be
issued under the Indenture with terms identical to the Exchange Securities, except that such debt securities shall be subject to transfer restrictions and minimum purchase requirements, shall bear a
legend relating to restrictions and on ownership and transfer identical to those applicable to the Securities as a result of the issuance thereof without registration under the 1933 Act and shall
provide for the payment of Additional Interest. The Company shall use its best efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Securities and, if unable to
do so, the Company will, at such time as any Private Exchange Security ceases to be a "restricted security" within the meaning of Rule 144 under the
1933 Act, permit any such Private Exchange Security to be exchanged for a like principal amount of Exchange Securities. 


        The
Exchange Securities and the Private Exchange Securities (if any) shall be issued under the Indenture, which shall be qualified under the TIA. Interest on each Exchange Security and
such Private Exchange Security (if any) will accrue from the last date on which interest was paid or duly provided for on the Securities surrendered in exchange therefor or, if no interest has been
paid or duly provided for on such Securities, from the Interest Accrual Date. 


        The
Indenture shall provide that the Exchange Securities, the Private Exchange Securities (if any) and the Securities shall vote and consent together on all matters as a single class and
shall constitute a single series of debt securities issued under the Indenture. 


        As
soon as practicable after the close of the Exchange Offer, the Company shall: 




          (i)  accept
for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which is an exhibit thereto; 




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        (ii)  deliver,
or cause to be delivered, to the Trustee for cancellation all Registrable Securities so accepted for exchange by the Company; and 



        (iii)  cause
the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of Registrable Securities so accepted for exchange equal in principal amount
to the principal amount of the Registrable Securities of such Holder so accepted for exchange. 





        The
Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer, or the making of any exchange by a Holder, does not violate any applicable law
or any applicable interpretation of the staff of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect
to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer, and (iii) the Holders tender the
Registrable Securities to the Company in accordance with the Exchange Offer. Each Holder of Registrable Securities (other than Participating Broker-Dealers) who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer will be required to represent that (1) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of the Company or an
Initial Purchaser holding Securities acquired by it
and having the status of an unsold allotment in the initial offering and sale of Securities pursuant to the Purchase Agreement, (2) any Exchange Securities to be received by it will be acquired
in the ordinary course of business and (3) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange
Securities, and shall be required to make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of
Form S-4 or another appropriate form under the 1933 Act available. To the extent permitted by law, the Company shall inform the Initial Purchasers of the names and addresses of the
Holders of Securities to whom the Exchange Offer is made and, to the extent such information is available to the Company, the names and addresses of the beneficial owners of such Securities, and the
Initial Purchasers shall have the right to contact such Holders and beneficial owners and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. 



        (b)  Shelf Registration. (i) If, because of any change in law or applicable interpretations thereof by the staff of the
SEC, the Company is not permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for any other reason (A) the Exchange Offer Registration
Statement is not declared effective within 150 days following the Closing Time or (B) the Exchange Offer is not consummated within 45 days after effectiveness of the Exchange
Offer Registration Statement (provided that if the Exchange Offer Registration Statement shall be declared effective after such 150-day period or if the Exchange Offer shall be consummated
after such 45-day period, then the Company's obligations under this clause (ii) arising from the failure of the Exchange Offer Registration Statement to be declared effective within
such 150-day period or the failure of the Exchange Offer to be consummated within such 45-day period, respectively, shall terminate), or (iii) if any Holder (other than
an Initial Purchaser holding Securities acquired directly from the Company as part of the offering and sale of Securities pursuant to the Purchase Agreement) is not eligible to participate in the
Exchange Offer or elects to participate in the Exchange Offer but does not receive Exchange Securities which are freely tradeable without any limitations or restrictions under the 1933 Act or
(iv) upon the request of any Initial Purchasers (provided that, in the case of this clause (iv), such Initial Purchaser shall hold Registrable Securities (including, without limitation,
Private Exchange Securities) that it acquired directly from the Company as part of the offering and sale of Securities pursuant to the Purchase Agreement and such request is made before the date that
is 90 days after consummation of the Exchange Offer), the Company shall, at its cost: 



        (A)  as
promptly as practicable, but no later than (a) the 150th day after the Closing Time or (b) the 60th day after any such filing obligation arises,
whichever is later, file with the SEC 




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a Shelf Registration Statement relating to the resale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by the Majority Holders of
such Registrable Securities and set forth in such Shelf Registration Statement; 


        (B)  use
its best efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as practicable, but in no event later than the 60th day
after the date on which the Company is required to file the Shelf Registration Statement. In the event that the Company is required to file a Shelf Registration Statement pursuant to
clause (iii) or (iv) above, the Company shall file and use its best efforts to have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities other than the Private
Exchange Securities (if any) and a Shelf Registration Statement (which may be combined with the Exchange Offer Registration Statement) with respect to resales of Registrable Securities held by such
Holder or such Initial Purchaser, as applicable; 


        (C)  use
its best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years after the latest date on which any Securities are originally issued by the Company (subject to extension pursuant to the last paragraph
of Section 3) or, if earlier, when all of the Registrable Securities covered by such Shelf Registration Statement (i) have been sold pursuant to the Shelf Registration Statement in
accordance with the intended method of distribution thereunder, (ii) become eligible for resale pursuant to Rule 144(k) under the 1933 Act or (iii) cease to be Registrable
Securities; and 


        (D)  notwithstanding
any other provisions hereof, use its best efforts to ensure that (i) the Shelf Registration Statement and each amendment thereto (if any) and the
Prospectus forming a part thereof and each amendment or supplement thereto comply in all material respects with the 1933 Act and the rules and regulations thereunder, (ii) neither the Shelf
Registration Statement nor any amendment thereto, when it becomes effective, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) except during circumstances described in the last two paragraphs of Section 3, neither the Prospectus forming part of
the Shelf Registration Statement nor any amendment or supplement thereto includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this provision shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a holder of Registrable Securities expressly for use therein. 





        The
Company shall not permit any securities other than Registrable Securities to be included in the Shelf Registration Statement without the prior written consent of Banc of America
Securities LLC. The Company further agrees, if necessary, to supplement or amend the Shelf Registration Statement if reasonably requested by the Majority Holders with respect to information relating
to the Holders and otherwise as required by Section 3(b) below, to use its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as
soon as practicable thereafter and to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. 



        (c)  Expenses. The Company shall pay all Registration Expenses in connection with the registration pursuant to
Section 2(a) and 2(b) hereof and, in the case of the Shelf Registration Statement, will reimburse the Holders or the Initial Purchasers for the reasonable fees and 



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disbursements of one counsel (in addition to any local counsel) designated in writing by the Majority Holders of such Registrable Securities included in such offering (or, if a Shelf Registration
Statement is filed solely pursuant to clause (iv) of the first paragraph of Section 2(b), designated by the Initial Purchasers) to act as counsel for the Holders of the Registrable
Securities in connection therewith.
Each Holder shall pay all fees and disbursements of its counsel other than as set forth in the preceding sentence or in the definition of Registration Expenses and all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to a the Shelf Registration Statement. 


        (d)  Effective Registration Statement.



          (i)  The
Company shall be deemed not to have used its best efforts to cause the Exchange Offer Registration Statement or any Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite periods set forth herein if the Company takes any action or fails to take any action or fails to take any action that could reasonably be
expected to result in any such Registration Statement not being declared effective or remaining effective or in the Holders of Registrable Securities (including, under the circumstances contemplated
by Section 3(f) hereof, Exchange Securities) covered thereby not being able to exchange or offer and sell such Registrable Securities during or omitted that period unless (A) such action
is required by applicable law or (B) such action is taken or omitted by the Company in good faith and for valid business reasons (which does not include avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets or a material corporate transaction or event, so long as the Company promptly complies with the notification requirements of
Section 3(k) hereof, if applicable. Nothing in this paragraph shall prevent the accrual of Additional Interest on any Securities, Private Exchange Securities or Exchange Securities. 


        (ii)  An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof shall not be
deemed to have become effective unless it has been declared effective by the SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement shall be deemed not to have been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. 




        (e)  Increase in Interest Rate. In the event that: 



          (i)  the
Exchange Offer Registration Statement is not filed with the SEC on or prior to the 90th day following the Closing Time, or 


        (ii)  the
Exchange Offer Registration Statement is not declared effective by the SEC on or prior to the 150th day following the Closing Time, or 


        (iii)  the
Exchange Offer is not consummated on or prior to the 45th day following the effective date of the Exchange Offer Registration Statement, or 



        (iv)  if
required, a Shelf Registration Statement is not filed with the SEC on or prior to (A) the 150th day following the Closing Time or (B) the 60th day
after the filing obligation arises, whichever is later, or 


        (v)  if
required, a Shelf Registration Statement is not declared effective on or prior to the 60th day after the date on which the Company is required to file such Shelf
Registration Statement, or 




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        (vi)  a
Shelf Registration Statement is declared effective by the SEC but such Shelf Registration Statement ceases to be effective or such Shelf Registration Statement or the
Prospectus included therein ceases to be usable in connection with resales of Registrable Securities for any reason and either (A) the aggregate number of days in any consecutive
365-day period for which the Shelf Registration Statement or such Prospectus shall not be effective or usable exceeds 60 days, (B) the Shelf Registration Statement or such
Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Shelf Registration Statement or such
Prospectus shall not be effective or usable for a period of more than 30 consecutive days, or 



      (vii)  the
Exchange Offer Registration Statement is declared effective by the SEC but, if the Exchange Offer Registration Statement is being used in connection with the
resale of Exchange Securities as contemplated by Section 3(f)(B) of this Agreement, the Exchange Offer Registration Statement ceases to be effective or the Exchange Offer Registration Statement
or the Prospectus included therein ceases to be usable in connection with resales of Exchange Securities for any reason during the 180-day period referred to in Section 3(f)(B) of
this Agreement (as such period may be extended pursuant to the last paragraph of Section 3 of this Agreement) and either (A) the aggregate number of days in any consecutive
365-day period for which the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable exceeds 60 days, (B) the Exchange Offer Registration
Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Exchange Offer
Registration Statement or the Prospectus shall not be effective or usable for a period of more than 30 consecutive days, 





(each
of the events referred to in clauses (i) through (vii) above being hereinafter called a "Registration Default"), the per annum interest rate borne by the Registrable Securities
shall be increased ("Additional Interest") by one-quarter of one percent (0.25%) per annum immediately following such 90-day period in the case of clause (i) above,
immediately following such 150-day period in the case of clause (ii) above, immediately following such 45-day period in the case of clause (iii) above,
immediately following any such 150-day period or 45-day period, whichever ends later, in the case of clause (iv) above, immediately following any such 60-day
period, in the case of clause (v) above, immediately following the 60th day in any consecutive 365-day period, as of the first day of the third period in any consecutive
365-day period or immediately following the 30th consecutive day, whichever occurs first, that a Shelf Registration Statement shall not be effective or a Shelf Registration Statement or
the Prospectus included therein shall not be usable as contemplated by clause (vi) above, or immediately following the 60th day in any consecutive 365-day period, as of the first
day of the third period in any consecutive
365-day period or immediately following the 30th consecutive day, whichever occurs first, that the Exchange Offer Registration Statement shall not be effective or the Exchange Offer
Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vii) above, which rate will be increased by an additional one-quarter of one
percent (0.25%) per annum immediately following each 60-day period that any Additional Interest continues to accrue under any circumstances; provided that the aggregate increase in such
annual interest rate may in no event exceed one-half of one percent (0.50%) per annum and the Company will not be required to pay Additional Interest for more than one Registration Default
at a time. Upon the filing of the Exchange Offer Registration Statement after the 90-day period described in clause (i) above, the effectiveness of the Exchange Offer Registration
Statement after the 150-day period described in clause (ii) above, the consummation of the Exchange Offer after the 45-day period described in clause (iii) above,
the filing of the Shelf Registration Statement after the 150-day period or 45-day period day, as the case may be, described in clause (iv) above, the effectiveness of a
Shelf Registration Statement after the 60-day period described in clause (v) above, or the Shelf Registration Statement once again being effective or the Shelf Registration
Statement and the Prospectus included therein becoming usable in connection with resales of Registrable Securities, as the case may be, in the case of clause (vi) above, or the 


9





 


Exchange Offer Registration Statement once again becoming effective or the Exchange Offer Registration Statement and the Prospectus included therein becoming usable in connection with resales of
Exchange Securities, as the case may be, in the case of clause (vii) thereof, the interest rate borne by the Registrable Securities from the date of such filing, effectiveness, consummation or
resumption of effectiveness or useability, as the case may be, shall be reduced to the original interest rate so long as no other Registration Default shall have occurred and shall be continuing at
such time and the Company is otherwise in compliance with this section; provided, however, that, if after any such reduction in interest rate, one or
more Registration Defaults shall again occur, the interest rate shall again be increased pursuant to the foregoing provisions. 



        The
Company shall notify the Trustee within three 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"). Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the Holders of Registrable Securities, on or before the applicable seminannual interest
payment date, immediately available funds in sums sufficient to pay the Additional Interest then due. The Additional Interest due shall be payable on each such interest payment date to the record
Holder of Registrable Securities entitled to receive the interest payment to be paid on such date as set forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date. 


        Anything
herein to the contrary notwithstanding, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, its
Securities for Exchange Securities in the Exchange Offer will not be entitled to receive any Additional Interest. For purposes of clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, Initial Purchasers holding unsold allotments of Securities acquired from the Company pursuant to the Purchase Agreement are not eligible to participate in the
Exchange Offer. 



        (f)    Specific Enforcement. Without limiting the remedies available to the Initial Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its obligations
under Sections 2(a) through 2(d) hereof may result in material irreparable injury to the Initial Purchasers, the Holders or the Participating Broker-Dealers for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers, any Holder and any Participating Broker-Dealer may
obtain such relief as may be required to specifically enforce the Company's obligations under Sections 2(a) through 2(d) hereof. 




        3.    Registration Procedures.    In connection with the obligations of the Company with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company shall: 



        (a)  prepare
and file with the SEC a Registration Statement or, if required, Registration Statements, within the time periods specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf Registration Statement, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof; 


        (b)  prepare
and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary under applicable law to keep
such Registration Statement effective for the applicable period; cause each Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the 1933 Act; and comply with the provisions of the 1933 Act and the 1934 Act with respect to the 



10





 





disposition of all Securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof; 



        (c)  in
the case of a Shelf Registration, (i) notify each Holder of Registrable Securities which may be included in such Shelf Registration, at least ten business days
prior to filing, that a Shelf Registration Statement with respect to the Registrable Securities is being filed and advising such Holders that the distribution of Registrable Securities will be made in
accordance with the method elected by the Majority Holders of such Registrable Securities included in such offering; (ii) furnish to each Holder of Registrable Securities, to counsel for the
Initial Purchasers, to counsel for the Holders and to each underwriter of an underwritten offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder, counsel or underwriter may reasonably request, including financial statements and schedules
and, if such Holder, counsel or underwriter so requests, all exhibits (including those incorporated by reference) in order to facilitate the public sale or other disposition of the Registrable
Securities; and (iii) subject to the penultimate paragraph of this Section 3, the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the Holders and underwriters of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by any Prospectus or
any amendment or supplement thereto; 


        (d)  use
its best efforts to register or qualify, or perfect exemptions from registration or qualification for, the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request, to cooperate with the Holders and the underwriters of any Registrable Securities in connection with any filings required to be made with the NASD, to keep each
such registration or qualification effective during the period such Registration Statement is required to be effective and do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d) or (ii) take any action which would subject it to general service of process or taxation in any such jurisdiction if it is not then so
subject; 


        (e)  in
the case of a Shelf Registration, notify each Holder of Registrable Securities included in such Shelf Registration and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing promptly (i) when a Registration Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or any state securities authority for post-effective amendments or supplements to a Registration Statement or
Prospectus or for additional information after a Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if between the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any,
relating to such offering cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (vi) of the happening of any event or the discovery of any facts during
the period a Shelf Registration Statement is effective which is contemplated in Section 2(d)(i)(A) or 2(d)(i)(B) or which makes 



11





 





any statement made in such Shelf Registration Statement or the related Prospectus untrue in any material respect or which constitutes an omission to state a material fact in such Shelf Registration
Statement or Prospectus and (vii) of any determination by the Company that a post-effective amendment to a Registration Statement would be appropriate; and without limitation to any
other provisions of this Agreement, the Company agrees that this Section 3(e) shall also be applicable, mutatis mutandis, with respect to the
Exchange Offer Registration Statement and the Prospectus included therein to the extent that such Prospectus is being used by Participating Broker-Dealers as contemplated by Section 3(f); 


        (f)    (A)
in the case of an Exchange Offer, (i) include in the Exchange Offer Registration Statement (x) a "Plan of Distribution" section substantially in the
form set forth in Annex B hereto or other such form as is reasonably acceptable to Banc of America Securities LLC covering the use of the Prospectus included in the Exchange Offer Registration
Statement by broker-dealers who have exchanged their Registrable Securities for Exchange Securities for the resale of such Exchange Securities and (y) a statement to the effect that any such
broker-dealers who wish to use the related Prospectus in connection with the resale of Exchange Securities acquired as a result of market-making or other
trading activities will be required to notify the Company to that effect, together with instructions for giving such notice (which instructions shall include a provision for giving such notice by
checking a box or making another appropriate notation on the related letter of transmittal) (each such broker-dealer who gives notice to the Company as aforesaid being hereinafter called a "Notifying
Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer who desires to participate in the Exchange Offer, without charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment or supplement thereto, as such broker-dealer may reasonably request, (iii) include in the Exchange Offer
Registration Statement a statement that any broker-dealer who holds Registrable Securities acquired for its own account as a result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer, may be a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange Securities, (iv) subject to the penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or supplement thereto by any Notifying Broker-Dealer in connection with the sale or transfer of
Exchange Securities, and (v) include in the transmittal letter or similar documentation to be executed by an exchange offeree in order to participate in the Exchange Offer the following
provision: 


        "If
the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities, it represents that the Registrable Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities pursuant to the Exchange Offer; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the 1933 Act"; 



        (B)  to
the extent any Notifying Broker-Dealer participates in the Exchange Offer, (i) the Company shall use its best efforts to maintain the effectiveness of the
Exchange Offer Registration Statement for a period of 180 days (subject to extension pursuant to the last paragraph of this Section 3) following the last date on which exchanges are
accepted pursuant to the Exchange Offer, and (ii) the Company will comply, insofar as relates to the Exchange Offer Registration Statement, the Prospectus included therein and the offering and
sale of 




12





 



Exchange Securities pursuant thereto, with its obligations under Section 2(b)(D), the last paragraph of Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p),
and the last two paragraphs of this Section 3 as if all references therein to a Shelf Registration Statement, the Prospectus included therein and the Holders of Registrable Securities referred,  mutatis
mutandis, to the Exchange Offer Registration Statement, the Prospectus included therein and the applicable Notifying Broker-Dealers and, for
purposes of this Section 3(f), all references in any such paragraphs or sections to the "Majority Holders" shall be deemed to mean, solely insofar as relates to this Section 3(f), the
Notifying Broker-Dealers who are the Holders of the majority in aggregate principal amount of the Exchange Securities which are Registrable Securities; 


        (C)  the
Company shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement as would otherwise be contemplated by
Section 3(b) or 3(k) hereof, or take any other action as a result of this Section 3(f), for a period exceeding 180 days (subject to extension pursuant to the last paragraph of
this Section 3) after the date on which the Exchange Offer Registration Statement is declared effective or such period of time such Notifying Broker-Dealers must comply with the prospectus
delivery requirements of the 1933 Act in order to resell the Exchange Securities received in exchange for the Registrable Securities acquired for their own account as a result of market-making or
other trading activity, and Notifying Broker-Dealers shall not be authorized by the Company to, and shall not, deliver such Prospectus after such period in connection with resales contemplated by this
Section 3; and 


        (D)  In
the case of any Exchange Offer Registration Statement, if requested by any Initial Purchaser or any known Participating Broker-Dealer, the Company agrees to deliver
to such Initial Purchasers or such Participating Broker-Dealer upon the effectiveness of the Exchange Offer Registration Statement (i) an opinion of counsel or opinions of counsel reasonably
satisfactory to the Initial Purchasers, (ii) officers' certificates substantially in the form customarily delivered in a public offering of debt securities and (iii) a comfort letter or
comfort letters in customary form to the extent permitted by Statement on Auditing Standards No. 72 of the American Institute of Certified Public Accountants (or if such a comfort letter is not
permitted, an agreed upon procedures letter in customary form) from the Company's independent certified public accountants (and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which financial statements are, or are required to be, included in the Registration Statement) with scope and coverage
comparable to the comfort letter or comfort letters delivered to the Initial Purchasers in connection with the initial sale of the Securities to the Initial Purchasers;  provided, however, if the
Company's independent certified public accountants as of the date hereof are no longer retained by the Company as its
independent certified public accountants for any reason, then the comfort letter required under this Section 3(f)(D)(iii) will not be required to be delivered by the Company. 




        (g)  (i) in
the case of an Exchange Offer, furnish counsel for the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel for the
Holders of Registrable Securities and counsel for any underwriters of Registrable Securities copies of any request by the SEC or any state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information; 


        (h)  use
its best effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement as soon as practicable and provide prompt notice to
each Holder of the withdrawal of any such order; 



13





 




        (i)    in
the case of a Shelf Registration, furnish to each Holder of Registrable Securities included in such Shelf Registration, upon request from such Holder and without
charge, at least one conformed copy of each Registration Statement and any post-effective amendments thereto (without documents
incorporated or deemed to be incorporated therein by reference or exhibits thereto, unless requested), if such documents are not available via the SEC EDGAR database; 


        (j)    in
the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends; and cause such Registrable Securities to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and registered in such names as the selling Holders or the underwriters, if any, may reasonably request in writing at least one
business day prior to the closing of any sale of Registrable Securities; 


        (k)  in
the case of a Shelf Registration, upon the occurrence of any event or the discovery of any facts as contemplated by Section 3(e)(vi) hereof, use its
best efforts to prepare a supplement or post-effective amendment to a Registration Statement or 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 Securities, such Prospectus will not include at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; the Company
agrees to notify each Holder to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement or omission; and at such time as such public disclosure is otherwise made or the Company determines that such disclosure
is not necessary, in each case to correct any misstatement of a material fact or to include any omitted material fact, the Company agrees promptly to notify each Holder of such determination and to
furnish each Holder such number of copies of the Prospectus, as amended or supplemented, as such Holder may reasonably request; 



        (l)    obtain
CUSIP numbers for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement, and
provide the Trustee with printed or word-processed certificates for the Exchange Securities or Registrable Securities, as the case may be, in a form eligible for deposit with the
Depositary; 


        (m)  (i) cause
the Indenture to be qualified under the TIA in connection with the registration of the Exchange Securities or Registrable Securities, as the case may
be, (ii) cooperate with the Trustee and the Holders to effect such changes, if any, to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use its best efforts to cause the Trustee to execute, all documents as may be required to effect such changes, if any, and all other forms and documents required to
be filed with the SEC to enable the Indenture to be so qualified in a timely manner; 


        (n)  in
the case of a Shelf Registration, the Holders of a majority in principal amount of the Registrable Securities registered pursuant to such Shelf Registration Statement
shall have the right to direct the Company to effect not more than one underwritten registration and, in connection with such underwritten registration, the Company shall enter into agreements
(including underwriting agreements
or similar agreements) and take all other customary and appropriate actions (including those reasonably requested by the Holders of a majority in principal amount of 



14





 





the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, in a manner that is reasonable and customary: 



          (i)  make
such representations and warranties to the Holders of such Registrable Securities and the underwriters, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may be reasonably requested by such Holders and underwriters; 


        (ii)  obtain
opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, and
the Holders of a majority in principal amount of the Registrable Securities being sold) addressed to each selling Holder and the underwriters, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters; 



        (iii)  obtain
"cold comfort" letters and updates thereof with respect to such Shelf Registration Statement and the Prospectus included therein, all amendments and supplements
thereto and all documents incorporated or deemed to be incorporated by reference therein from the Company's independent certified public accountants and from the independent certified public
accountants for any other Person or any business or assets whose financial statements are included or incorporated by reference in the Shelf Registration Statement, each addressed to the underwriters,
and use best efforts to have such letters addressed to the selling Holders of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar underwritten offerings and such letters to be delivered at the time of the pricing of such underwritten registration with an update to such
letter to be delivered at the time of closing of such underwritten registration; 


        (iv)  if
an underwriting agreement or other similar agreement is entered into, cause the same to set forth indemnification and contributions provisions and procedures
substantially equivalent to the indemnification and contributions provisions and procedures set forth in Section 5 hereof with respect to the underwriters and all other parties to be
indemnified pursuant to Section 5 hereof or such other indemnification and contributions as shall be satisfactory to the Company, the applicable underwriters and the Holders of the majority in
principal amount of the Registrable Securities being sold; and 


        (v)  deliver
such other documents and certificates as may be reasonably requested and as are customarily delivered in similar offerings. 





        The
documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be delivered at the closing under any underwriting or similar agreement as and to the extent required
thereunder. In the case of any such underwritten offering, the Company shall provide written notice to the Holders of all Registrable Securities of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such underwritten offering. Such notice shall (x) offer each such Holder the right to participate in such underwritten offering,
(y) specify a date, which shall be no earlier than 15 days following the date of such notice, by which such Holder must inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such Holder must follow in order to participate in such underwritten offering; 



        (o)  in
the case of a Shelf Registration, make available for inspection by representatives of the Holders of the Registrable Securities included in such Shelf Registration
Statement who shall certify to the Company in writing that they have a current intention to sell the Registrable Securities pursuant to the Shelf Registration Statement and any underwriters
participating in any disposition pursuant to a Shelf Registration Statement and any single firm of counsel or single firm 



15





 


of accountants retained by such Holders or underwriters, all financial statements and other records, documents and properties of the Company reasonably requested by any such Persons, and cause the
respective officers, directors, employees, and any other agents of the Company to supply all information reasonably requested by any such Persons in connection with a Shelf Registration Statement,
subject to such confidentiality agreements as the Company may reasonably require; 


        (p)  (i) in
the case of an Exchange Offer, a reasonable time prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment or supplement to such Prospectus (excluding documents incorporated by reference), provide copies of such documents to the Initial
Purchasers, and will not file any such documents as to which the Initial Purchasers or their counsel may reasonably object prior to such filing; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf Registration Statement or amendment or supplement to such
Prospectus (excluding documents incorporated by reference), provide copies of such document to the Holders of Registrable Securities included in such Shelf Registration Statement, to the Initial
Purchasers, to the underwriter or underwriters, of an underwritten offering of Registrable Securities, and to counsel for any such Holders, Initial Purchasers or underwriters, and will not file any
such documents as to which the Holders of Registrable Securities, the Initial Purchasers, any such underwriter or underwriters or any of their respective counsel may reasonably object prior to such
filing; and (iii) cause the representatives of the Company to be available for discussion of such documents as shall be reasonably requested by the Holders of Registrable Securities, the
Initial Purchasers on behalf of such Holders or any underwriter, and shall not at any time make any filing of any such document of which such Holders, the Initial Purchasers on behalf of such Holders,
their counsel or any underwriter shall not have previously been advised and furnished a copy or to which the Majority Holders of Registrable Securities included in such Registration Statement, the
Initial Purchasers on behalf of such Holders, their counsel or any underwriter shall reasonably object prior to such filing; 


        (q)  in
the case of a Shelf Registration, use its best efforts to cause the Registrable Securities to be rated with the appropriate rating agencies, if so requested by the
Majority Holders of Registrable Securities
or by the underwriter or underwriters of an underwritten offering, unless the Registrable Securities are already so rated; 



        (r)  otherwise
use its best efforts to comply with all applicable rules and regulations of the SEC and, with respect to each Registration Statement and each
post-effective amendment, if any, thereto and each filing by the Company of an Annual Report on Form 10-K, make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least twelve months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; 


        (s)  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 and its counsel; 



        (t)    in
the case of a Shelf Registration, immediately after the filing of any document which is to be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers on behalf of such Holders and, upon request of such Initial Purchasers, make representatives
of the Company as shall be reasonably requested by the Holders of Registrable Securities, or the Initial Purchasers on behalf of such Holders, available for discussion of such document; and 


        (u)  in
the case of a Shelf Registration and if Exchange Securities are so listed, use its best efforts to cause all Registrable Securities to be listed on any securities
exchange on which Exchange Securities are then listed if such listing of Registrable Securities included in such Shelf 



16





 





Registration is requested by the Majority Holders or by the underwriter or underwriters of an underwritten offering of Registrable Securities, if any. 




        In
the case of a Shelf Registration Statement, the Company may (as a condition to such Holder's participation in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding such Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in
writing and require such Holder to agree in writing to be bound by all provisions of this Agreement applicable to such Holder. 


        In
the case of a Shelf Registration Statement, each Holder agrees and, in the event that any Participating Broker-Dealer is using the Prospectus included in the Exchange Offer
Registration Statement in connection with the sale of Exchange Securities pursuant to Section 3(f), each such Participating Broker-Dealer agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts of the kind described in Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until
receipt by such Holder or Participating Broker-Dealer, as the case may be, of (i) the copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof or
(ii) written notice from the Company that the Shelf Registration Statement or the Exchange Offer Registration Statement, respectively, are once again effective or that no supplement or
amendment is required. If so directed by the Company, such Holder or Participating Broker-Dealer, as the case may be, will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. Nothing in this paragraph
shall prevent the accrual of Additional Interest on any Securities, Private Exchange Securities or Exchange Securities. 


        If
the Company shall give any such notice to suspend the disposition of Registrable Securities pursuant to the immediately preceding paragraph, the Company shall be deemed to have used
its best efforts to keep the Shelf Registration Statement or, in the case of Section 3(f), the Exchange Offer Registration Statement, as the case may be, effective during such period of
suspension; provided that (i) such period of suspension shall not exceed the time periods provided in Section 2(e)(vii) hereof and (ii) the Company shall use its best
efforts to file and have declared effective (if an amendment) as soon as practicable thereafter an amendment or supplement to the Shelf Registration Statement or the Exchange Offer Registration
Statement or both, as the case may be, or the Prospectus included therein and shall extend the period during which the Shelf Registration Statement or the Exchange Offer Registration Statement or
both, as the case may be, shall be maintained effective pursuant to this Agreement (and, if applicable, the period during which Participating Broker-Dealers may use the Prospectus included in the
Exchange Offer Registration Statement pursuant to Section 3(f) hereof) by the number of days during the period from and including the date of the giving of such notice to and including the
earlier of the date when the Holders or Participating Broker-Dealers, respectively, shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions and the
effective date of written notice from the Company to the Holders or Participating Broker-Dealers, respectively, that the Shelf Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is required. 


        4.    Underwritten Registrations.    


        If
any of the Registrable Securities 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 the Majority Holders of such Registrable Securities included in such offering, subject to the consent of the Company, which consent shall not be
unreasonably withheld. 


17





 



        No
Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Securities 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. 


        5.    Indemnification and Contribution.    



        (a)  The
Company agrees to indemnify and hold harmless each Initial Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who participates in an offering
of Registrable Securities (each, an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows: 



          (i)  against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents
incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 


        (ii)  against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 5(d) below) any such settlement is effected with the written consent of the Company; and 


        (iii)  against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; 





provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter with respect to such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) or made in reliance upon the Statements of Eligibility of the Trustee (Form T-1)
under the 1939 Act filed as exhibits to the Registration Statement. 



        (b)  Each
Holder, each Initial Purchaser, each Participating Broker-Dealer and each Underwriter, severally but not jointly, agrees to indemnify and hold harmless the Company,
each director of the Company, each officer of the Company, each other Initial Purchaser, each other Participating Broker-Dealer, each other Underwriter and each other selling Holder and each Person,
if any, who controls the Company, any Initial Purchaser, any Underwriter, any Participating 



18





 


Broker-Dealer or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 5(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect
to such Holder, Initial Purchaser, Underwriter or Participating Broker-Dealer furnished to the Company by such Holder, Initial Purchaser, Underwriter or Participating Broker-Dealer respectively,
expressly for use in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder, Initial Purchaser, Underwriter or Participating Broker-Dealer shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement. 


        (c)  Each
indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof, and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 5 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. 


        (d)  If
at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature contemplated by Section 5(a)(ii) effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided,  however, that an
indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance with such request for the amount of such fees and expenses of counsel as the indemnifying party believes in good
faith to be reasonable and (2) provides written notice to the indemnified party that the indemnifying party disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses and sets forth the basis for such dispute. 


        (e)  In
order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section 5 is for any reason
unavailable to or insufficient 



19





 





to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations. The relative fault of such indemnifying party or parties on the one hand and the indemnified party or parties on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. 


        (f)    The
Company, the Holders, and the Initial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (e) above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 5
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. 




        Notwithstanding
the provisions of this Section 5, no Initial Purchaser or Holder, Participating Broker-Dealer or Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which Registrable Securities sold by it were offered exceeds the amount of any damages that such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. 


        For
purposes of this Section 5, each Person, if any, who controls an Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, and
each director of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The respective obligations of the Initial Purchasers, Holders, Participating Broker-Dealers and
Underwriters to contribute pursuant to this Section 5 are several in proportion to the principal amount of Securities purchased by them and not joint. 


        The
indemnity and contribution provisions contained in this Section 5 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, Holder, Participating Broker-Dealer or Underwriter or any Person controlling any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter, or by or on behalf of the Company, its officers or directors or any Person controlling the Company, 


20





 




(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities or Exchange Securities pursuant to a Shelf Registration Statement. 



        6.    Miscellaneous.    



        (a)  Rule 144 and Rule 144A. For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the 1934 Act, the Company covenants that it will file all reports required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required to file such reports, it will upon the request of any Holder or beneficial owner of Registrable Securities
(i) make publicly available such information (including, without limitation, the information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, (ii) deliver or cause to be delivered, promptly following a request by any Holder or beneficial owner of Registrable Securities or any prospective purchaser
or transferee designated by such Holder or beneficial owner, such information (including, without limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act, and (iii) take such further action that is reasonable in the circumstances, in each case to the extent required from time to time
to enable such Holder to sell its Registrable Securities without registration under the 1933 Act within the limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder or beneficial owner of Registrable Securities, the Company will deliver to such Holder or beneficial owner a written statement as to whether it has
complied with such requirements. 


        (b)  No Inconsistent Agreements. The Company has not entered into nor will the Company on or after the date of this Agreement
enter into any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not and will not in any way conflict with and are not and will not be inconsistent with the rights granted to the holders of any of the Company's other issued and
outstanding securities under any other agreements entered into by the Company or any of its subsidiaries. 


        (c)  Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or departure. 



        (d)  Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder or Participating Broker-Dealer (other than an Initial
Purchaser), at the most current address set forth on the records of the registrar under the Indenture, (ii) if to an Initial Purchaser, at the most current address given by such Initial
Purchaser to the Company by means of a notice given in accordance with the provisions of this Section 6(d), which address initially is the address set forth in the Purchase Agreement;
(iii) if to the Company, initially at the address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this
Section 6(d) and (iv) if to any Underwriter, at the most current address given by such Underwriter to the Company by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially shall be the address set forth in the applicable underwriting agreement. 




        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,
first 


21





 


class, postage prepaid, if mailed; when receipt is 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. 



        (e)  Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation of the terms
hereof or of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be
entitled to receive the benefits hereof. 


        (f)    Third Party Beneficiary. Each Holder shall be a third party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of other Holders hereunder. Each Holder, by its acquisition of Securities, shall be deemed to have agreed to the provisions of Section 5(b) hereof. 


        (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)    Restriction on Resales. If (i) the Company or any of its subsidiaries or affiliates (as defined in Rule 144
under the 1933 Act) shall redeem, purchase or otherwise acquire any Registrable Security or any Exchange Security which is a "restricted security" within the meaning of Rule 144 under the 1933
Act, the Company will deliver or cause to be delivered such Registrable Security or Exchange Security, as the case may be, to the Trustee for cancellation and neither the Company nor any of its
subsidiaries or affiliates will hold or resell such Registrable Security or Exchange Security or issue any new Security or Exchange Security to replace the same. 


        (j)    GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 



        (k)  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. 



[SIGNATURE
PAGE FOLLOWS] 


22





 

        IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. 



	 	 	DOLE FOOD COMPANY, INC.
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 




23





 


	

Confirmed and accepted as of the date first above written:	
 	

 
	

BANC OF AMERICA SECURITIES LLC

CREDIT SUISSE FIRST BOSTON CORPORATION

And the other parties referred to in Annex A hereto	
 	

 
	

By:	
 	

BANC OF AMERICA SECURITIES LLC	
 	

 
	

By:	
 	

 	
 	

 	
 	

 
	 	 	
	 	 
	 	 	Name:	 	 
	 	 	Title:

	 	 





For
itself and on behalf of the other Initial Purchasers 


24





 
ANNEX A  


 
 

INITIAL PURCHASERS    
  


Commerzbank
Capital Markets Corp.

Deutsche Bank Securities Inc.

Salomon Smith Barney Inc.

Scotia Capital (USA) Inc. 


25





 
ANNEX B  


 
  PLAN OF DISTRIBUTION    
  


        Each broker-dealer that receives new notes for its own account under the exchange offer must acknowledge that it will deliver a prospectus in connection with any
resale of those notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer for resales of new notes received in exchange for original notes that had
been acquired as a result of market-making or other trading activities. We have agreed that, for a period of 180 days after the expiration date of the exchange offer, we will make this
prospectus, as it may be amended or supplemented, available to any broker-dealer for use in connection with any such resale. Any broker-dealers required to use this prospectus and any amendments or
supplements to this prospectus for resales of the new notes must notify us of this fact by checking the box on the letter of transmittal requesting additional copies of these documents. 


        Notwithstanding
the foregoing, we are entitled under the registration rights agreement to suspend the use of this prospectus by broker-dealers under specified circumstances. For example,
we may suspend the use of this prospectus if: 



	•
	the
SEC or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or additional
information;



	•
	the
SEC or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that
purpose;



	•
	we
receive notification of the suspension of the qualification of the new notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose;



	•
	the
suspension is required by law;



	•
	such
action is taken by us in good faith and for valid business reason, including the possible acquisition or divestiture of assets or a material corporate
transaction or event; or



	•
	an
event occurs which makes any statement in this prospectus untrue in any material respect or which constitutes an omission to state a material fact in this
prospectus. 




        If
we suspend the use of this prospectus, the 180-day period referred to above will be extended by a number of days equal to the period of the suspension. 



        We
will not receive any proceeds from any sale of new notes by broker- dealers. New notes received by broker-dealers for their own account under the exchange offer may be sold from time
to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on those notes or a combination of those methods,
at market prices prevailing at the time of resale, at prices related to prevailing market prices or at negotiated prices. Any resales may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions from the selling broker-dealer or the purchasers of the new notes. Any broker-dealer that resells new notes received by
it for its own account under the exchange offer and any broker or dealer that participates in a distribution of the new notes may be deemed to be an "underwriter" within the meaning of the Securities
Act and any profit on any resale of new notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of
transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker- dealer will not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. 


        We
have agreed to pay all expenses incidental to the exchange offer other than commissions and concessions of any broker or dealer and will indemnify holders of the new notes, including
any broker-dealers, against certain liabilities, including liabilities under the Securities Act or contribute to payments that they may be required to make in request thereof. 


26









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REGISTRATION RIGHTS AGREEMENT



REGISTRATION RIGHTS AGREEMENT

INITIAL PURCHASERS

PLAN OF DISTRIBUTION