Exhibit 4.2


 


TWC Holding LLC

TWC Holding Corp.


 


$26,000,000

13.875% Senior  PIK
Notes due 2011


 


REGISTRATION RIGHTS AGREEMENT


 


February 11, 2005


 


CIBC WORLD MARKETS CORP.

300 Madison Avenue

New York, NY 10017


 


Ladies and Gentlemen:


 


TWC Holding LLC, a Delaware limited liability company and TWC Holding
Corp., a Delaware corporation (each, an Issuer, and together, the “Company”), are issuing and selling to CIBC
World Markets Corp. (the “Initial Purchaser”),
upon the terms set forth in a purchase agreement, dated as of February 11,
2005 (the “Purchase Agreement”),
regarding the Company’s 13.875% Senior PIK Notes due 2011, Series A in the
aggregate principal amount of (a) $26,000,000 plus (b) the amount of
interest and liquidated damages under the Indenture (as defined below) which
has been paid in-kind in accordance with the terms of the Indenture
(collectively, the “Notes”).  As an inducement to the Initial Purchaser to
enter into the Purchase Agreement, each of the Issuers jointly and severally
agrees with the Initial Purchaser, for the benefit of the holders of the
Securities (as defined below) (including, without limitation, the Initial
Purchaser), as follows:


 


1.             Definitions.


 


Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


Advice:  See the last paragraph of Section 5.


 


Agreement:  This Registration Rights Agreement.


 


Applicable
Period:  See Section 2(f).


 


Business
Day:  Any day,
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or at a place of payment are authorized or obligated by law,
regulation or executive order to be closed.


 


Closing
Date:  February 11,
2005.


 





















 


controlling
person:  See Section 7(a).


 


DTC:  See Section 5(i).


 


Effectiveness
Date:  The 180th
day following the Closing Date.


 


Effectiveness
Period:  See Section 3(a).


 


Event:  See Section 4(a).


 


Event
Date:  See Section 4(a).


 


Exchange
Act:  The
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.


 


Exchange
Offer:  See Section 2(a).


 


Exchange
Offer Registration Statement:  See Section 2(a).


 


Exchange
Securities:  The
13.875% Senior PIK Notes due 2011, Series B, of the Company, identical in
all respects to the Notes, except for references to series and restrictive legends.


 


Filing
Date:  The 90th
day following the Closing Date.


 


Holder:  Each holder of Registrable Securities.


 


Holder
Indemnified Parties: 
See Section 7(a).


 


indemnified
party:  See Section 7(c).


 


indemnifying
parties:  See Section 7(c).


 


Indenture:  The Indenture, dated as of the date hereof,
by and between the Company and U.S. Bank National Association, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time, in accordance with the terms thereof.


 


Initial
Shelf Registration: 
See Section 3(a).


 


Liquidated
Damages Amount: 
With respect to any Event, an amount equal to a per annum rate of 0.25%
for the first 90-day period immediately following the applicable Event Date,
increasing by an additional per annum rate of 0.25% with respect to each subsequent
90-day period, up to a maximum per annum rate of 1.00%, which shall accrue per
$1,000 principal amount of Registrable Securities.


 


Losses:  See Section 7(a).


 


Maximum
Contribution Amount: 
See Section 7(d).


 


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NASD:  The National Association of Securities
Dealers, Inc.


 


Participating
Broker-Dealer: 
See Section 2(f).


 


Person:   An individual, trustee, corporation, limited
liability company, partnership, limited liability partnership, joint stock
company, joint venture, trust, unincorporated organization or association,
government or any agency or political subdivision thereof, union, business
association, firm or other entity.


 


Private
Exchange:  See Section 2(g).


 


Private
Exchange Securities: 
See Section 2(g).


 


Prospectus:  The prospectus included in a Registration
Statement at the time that such Registration Statement is declared effective
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended
or supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.


 


Registrable
Securities:  Any
of the Notes, the Private Exchange Securities and the Exchange Securities
received in the Exchange Offer that may not be sold without restriction under
federal or state securities law.


 


Registration
Statement:  Any
registration statement of the Company that covers any of the Securities and
that is filed pursuant to the provisions of this Agreement, including the
Prospectus included therein, all amendments and supplements to such registration
statement and Prospectus (including post-effective amendments), all exhibits
thereto and all material incorporated by reference or deemed to be incorporated
by reference therein.


 


Rule 144:  Rule 144 under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC.


 


Rule 144A:  Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the SEC.


 


Rule 415:  Rule 415 under the Securities Act, as
such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.


 


SEC:  The Securities and Exchange Commission.


 


Securities:  The Notes, the Private Exchange Securities
and the Exchange Securities, collectively.


 


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Securities
Act:  The Securities
Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.


 


Shelf
Effectiveness Date: 
With respect to a Shelf Registration, the 90th day after the
filing of such Shelf Registration.


 


Shelf
Filing Date: 
With respect to a Shelf Registration, the 60th day following (i) in
the case of an Initial Shelf Registration, delivery of the Shelf Notice
triggering the obligation to file such Initial Shelf Registration, and (ii) in
the case of a Subsequent Shelf Registration, the cessation of effectiveness of
the prior Shelf Registration.


 


Shelf
Notice:  See Section 2(i).


 


Shelf
Registration: 
The Initial Shelf Registration and any Subsequent Shelf Registration.


 


Special
Counsel: 
Counsel chosen by the holders of a majority in aggregate principal
amount of Securities.


 


Subsequent
Shelf Registration: 
See Section 3(b).


 


TIA:  The Trust Indenture Act of 1939, as amended.


 


Trustee:  The trustee under the Indenture and, if any,
the trustee under any indenture governing the Exchange Securities or the
Private Exchange Securities.


 


Underwritten
Registration or
Underwritten Offering:   A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.


 


2.             Exchange Offer.


 


(a)           The Company shall:


 


(i)            prepare
and file with the SEC promptly after the date hereof, but in no event later
than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form
under the Securities Act with respect to a proposed offer (the “Exchange Offer”) to the Holders to issue
and deliver to such Holders, in exchange for the Notes, a like aggregate
principal amount of Exchange Securities;


 


(ii)           use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective as promptly as practicable after the filing thereof, but in
no event later than the Effectiveness Date;


 


(iii)          keep
the Exchange Offer Registration Statement effective until the consummation of
the Exchange Offer pursuant to its terms; and


 


(iv)          unless
the Exchange Offer would not be permitted by a policy of the SEC, use its
reasonable best efforts to commence the Exchange Offer promptly after the date


 


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on which the Exchange Offer Registration Statement has become effective
and use its reasonable best efforts to consummate the Exchange Offer on or
prior to the date that is 210 days after the Closing Date, consummate the
Exchange Offer and issue Exchange Securities in exchange for all Notes tendered
prior thereto in the Exchange Offer.


 


The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC.


 


(b)           The Exchange Securities
shall be issued under, and entitled to the benefits of, the Indenture or a
trust indenture that is identical to the Indenture (other than such changes as
are necessary to comply with any requirements of the SEC to effect or maintain
the qualification thereof under the TIA).


 


(c)           In connection with the
Exchange Offer, the Company shall:


 


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


 


(ii)           keep
the Exchange Offer open for not less than 20 Business Days after the date
notice thereof is mailed to the Holders (or longer if required by applicable
law);


 


(iii)          utilize
the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate
of the Trustee;


 


(iv)          permit
Holders to withdraw tendered Notes at any time prior to the close of business,
New York time, on the last Business Day on which the Exchange Offer shall
remain open; and


 


(v)           otherwise
comply with all laws applicable to the Exchange Offer.


 


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


 


(i)            accept
for exchange all Notes validly tendered and not validly withdrawn pursuant to
the Exchange Offer;


 


(ii)           deliver
to the Trustee for cancellation all Notes so accepted for exchange; and


 


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


 


(e)           Interest on each
Exchange Security and each Private Exchange Security will accrue from the last
interest payment date on which interest was paid on the Notes surrendered in
exchange therefor or, if no interest has been paid on the Notes, from the date
of original issue of


 


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the Notes.  Each Exchange
Security and each Private Exchange Security shall bear interest at the rate set
forth thereon; provided, that
interest with respect to the period prior to the issuance thereof shall accrue
at the rate or rates borne by the Notes surrendered in exchange therefor from
time to time during such period.


 


(f)            The Company shall
include within the Prospectus contained in the Exchange Offer Registration
Statement a section entitled “Plan of Distribution,” containing a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential “underwriter” status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”).  Such “Plan of Distribution” section shall
also state that the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Broker-Dealers, will be permitted and shall
include a statement describing the means by which Participating Broker-Dealers
may resell the Exchange Securities.  The
Company shall use its best efforts to keep the Exchange Offer Registration
Statement continuously effective and, as required, to amend and supplement the
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirement of the Securities Act for the shorter of: (i) such
period of time as such Persons must comply with such requirements in order to
resell the Exchange Securities and (ii) the period ending when all
Registrable Securities covered by the Exchange Offer Registration Statement
have been sold pursuant thereto (the “Applicable
Period”).


 


(g)           If, prior to
consummation of the Exchange Offer, the Initial Purchaser holds any Notes
acquired by it and having the status as an unsold allotment in the initial
distribution of the Notes, the Company shall, upon the request of the Initial
Purchaser, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue (pursuant to the same indenture as the Exchange
Securities and subject to transfer restrictions thereon) and deliver to the
Initial Purchaser, in exchange for the Notes held by the Initial Purchaser (the
“Private Exchange”), a like
principal amount of debt securities of the Company that are identical to the Exchange
Securities (the “Private Exchange Securities”).  The Private Exchange Securities shall bear
the same CUSIP number as the Exchange Securities.


 


(h)           The Company may require
each Holder participating in the Exchange Offer to represent to the Company
that, at the time of the consummation of the Exchange Offer:  (i) any Exchange Securities received by
such Holder in the Exchange Offer will be acquired in the ordinary course of
its business; (ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Exchange Securities
within the meaning of the Securities Act or resale of the Exchange Securities
in violation of the Securities Act; (iii) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in, the distribution
of the Exchange Securities; (iv) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, that it will
deliver a prospectus, as required by law, in connection with any resale of such
Exchange Securities; and (v) if such Holder is an affiliate of the
Company, that it will comply with the registration and prospectus delivery
requirements of the Securities Act applicable to it.


 


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(i)            If:  (i) prior to the consummation of the
Exchange Offer, the Company determines in its reasonable judgment that the Exchange
Securities would not, upon receipt, be tradeable by the Holders thereof without
restriction under the Securities Act and the Exchange Act; (ii) applicable
interpretations of the staff of the SEC would not permit the consummation of
the Exchange Offer on or prior to the Effectiveness Date; (iii) subsequent
to the consummation of the Private Exchange, any Holder of Private Exchange Securities
so requests; (iv) the Exchange Offer is not consummated within 210 days of
the Closing Date for any reason; or (v) in the case of (A) any Holder
not permitted to participate in the Exchange Offer, (B) any Holder
participating in the Exchange Offer that receives Exchange Securities that may
not be resold by such Holder to the public without delivering a prospectus and
the Prospectus contained in the Exchange Offer Registration Statement is not
available for or may not be lawfully delivered for such resales, or (C) such
Holder is a broker-dealer and holds Notes acquired directly from the Company or
any of its affiliates and, in each such case contemplated by this clause (v),
such Holder notifies in writing the Company to file an Initial Shelf
Registration, then in the case of clauses (i), (ii), (iii) or (iv) the
Company shall promptly (and in any event within five Business Days) deliver to
the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter
(but in no event later than the Shelf Filing Date) file an Initial Shelf
Registration pursuant to Section 3.


 


3.             Shelf Registration.


 


If a Shelf Notice is required to be delivered pursuant to clause (i),
(ii), (iii) or (iv) of Section 2(i), then this Section 3
shall apply to all Registrable Securities. 
If a Shelf Registration is required to be made pursuant to clause (v) of
Section 2(i), then this Section 3 shall apply solely with respect to
Registrable Securities held by those Holders who have notified the Company as
described in clause (v) of Section 2(i).


 


(a)           Initial Shelf Registration.  The Company shall prepare and file with the
SEC a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the “Initial Shelf Registration”).  If the Company has not filed an Exchange
Offer Registration Statement, the Company shall file with the SEC the Initial
Shelf Registration on or prior to the Filing Date.  Otherwise, the Company shall file with the
SEC the Initial Shelf Registration as promptly as possible following the occurrence
of the event described in Section 2(i) which triggered such filing
obligation, but in no event later than the Shelf Filing Date.  The Initial Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings).  The Company (i) shall not permit any
securities other than the Registrable Securities to be included in any Shelf
Registration, and (ii) shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act no
later than the Shelf Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
that is 24 months after the date it is declared effective (subject to extension
pursuant to the last paragraph of Section 5) (the “Effectiveness Period”), or such shorter
period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated
in the Initial Shelf Registration, or (ii) a


 


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Subsequent Shelf Registration covering all of the Registrable
Securities has been declared effective under the Securities Act, or (iii) there
cease to be any outstanding Registrable Securities.


 


(b)           Subsequent Shelf Registrations.  If any Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Securities registered
thereunder), the Company shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness file an amendment
to the Shelf Registration in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional “shelf”
Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (a “Subsequent Shelf
Registration”).  If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective as promptly
as practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration, and any previously filed Subsequent Shelf Registration, was
previously effective.


 


(c)           Provision of Information.  The Company may exclude from any Shelf
Registration the Registrable Securities of any Holder who fails to furnish to
the Company, within 20 days after receipt of a written request therefor, the
information specified in Item 507 or 508, as applicable, of Regulation S-K
under the Securities Act for use in connection with any Shelf Registration or
Prospectus or preliminary prospectus included therein.  No such Holder shall be entitled to
liquidated damages pursuant to Section 4 unless and until such Holder
shall have provided such information. 
Each Holder whose Registrable Securities are to be included in a Shelf
Registration Statement agrees to promptly furnish to the Company all additional
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.


 


4.             Liquidated Damages.


 


(a)           The Company
acknowledges and agrees that the Holders will suffer damages, and that it would
not be feasible to ascertain the extent of such damages with precision, if the
Company fails to fulfill its obligations hereunder.  Accordingly, in the event of such failure,
the Company agrees to pay liquidated damages to each Holder under the
circumstances and to the extent set forth below:


 


(i)            if
the Exchange Offer Registration Statement has not been filed with the SEC on or
prior to the Filing Date;


 


(ii)           if
the Exchange Offer Registration Statement is not declared effective by the SEC
on or prior to the Effectiveness Date; or


 


(iii)          if
the Company has not exchanged Exchange Securities for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior to the
date that is 210 days after the Closing Date (if the Exchange Offer is then
required to be made pursuant to Section 2(a)(iv) hereof);


 


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(iv)          if
obligated to file an Initial Shelf Registration and the Company fails to file
such Initial Shelf Registration with the SEC on or prior to Shelf Filing Date
or Filing Date, if applicable pursuant to Section 3(a) hereof;


 


(v)           if
an Initial Shelf Registration is filed and such Initial Shelf Registration is
not declared effective on or prior to the Shelf Effectiveness Date; or


 


(vi)          if
a Shelf Registration is filed and declared effective by the SEC but thereafter
ceases to be effective without being succeeded within 30 days by a Subsequent
Shelf Registration filed and declared effective;


 


(each of the foregoing an “Event,”
and the date on which the Event occurs being referred to herein as an “Event Date”).


 


Subject to the following sentence, upon the occurrence of any Event,
the Company shall pay, or cause to be paid, in addition to amounts otherwise
due under the Indenture and the Registrable Securities, as liquidated damages,
and not as a penalty, to each Holder on an interest payment date, an amount
equal to the Liquidated Damages Amount per $1,000 principal amount of Registrable
Securities held by such Holder; provided
that such liquidated damages will, in each case, cease to accrue (subject to
the occurrence of another Event) on the date on which all Events have been
cured.  If the Company must pay the
Liquidated Damages Amount on the Registrable Securities it will do so in cash
or in additional Notes, at its option, which additional Notes will be
Registrable Securities hereunder.  An
Event under clause (i) above shall be cured on the date that the Exchange
Offer Registration Statement (or, if an Initial Shelf Registration is required
to be filed pursuant to clause (i), (ii) or (iii) of Section 2(i),
the date that such Initial Shelf Registration) is filed with the SEC; an Event
under clause (ii) above shall be cured on the date that the Exchange Offer
Registration Statement (or, if an Initial Shelf Registration is required to be
filed pursuant to clause (i), (ii) or (iii) of Section 2(i), the
date that such Initial Shelf Registration) is declared effective by the SEC; an
Event under clause (iii) above shall be cured on the earlier of the date (A) the
Exchange Offer is consummated with respect to all Notes validly tendered or (B) the
Company delivers a Shelf Notice to the Holders and the Trustee pursuant to
clause (i), (ii) or (iii) of Section 2(i); an Event under clause
(iv) above shall be cured on the date that such Initial Shelf Registration
is filed with the SEC; an Event under clause (v) above shall be cured on
the date that such Initial Shelf Registration is declared effective by the SEC;
and an Event under clause (vi) above shall be cured on the earlier of (1) the
date on which the applicable Shelf Registration is no longer subject to an
order suspending the effectiveness thereof or proceedings relating thereto or (2) a
new Subsequent Shelf Registration is declared effective.


 


(b)           The Company shall
notify the Trustee within five Business Days after each Event Date.  If liquidated damages are due on Registrable
Securities, then the Company shall pay the liquidated damages due on the
Registrable Securities by 12:00 noon, New York City time, on or before the
applicable semi-annual interest payment date for the Registrable Securities by
either issuing additional Notes under the Indenture or by depositing with the
Trustee, in trust, for the benefit of the Holders thereof, immediately
available funds, in each case, in sums sufficient to pay the liquidated damages
then due.  The Liquidated Damages Amount
due shall be payable in


 


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the same manner as interest payments on the Notes on each interest
payment date to the record Holder entitled to receive the interest payment to
be made on such date as set forth in the Indenture.


 


5.             Registration Procedures.


 


In connection with the registration of any Securities pursuant to
Sections 2 or 3, the Company shall effect such registrations to permit the sale
of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:


 


(a)           Prepare and file with
the SEC, as soon as practicable after the date hereof but in any event on or
prior to the Filing Date, with respect to an Exchange Offer Registration
Statement, and on or prior to the Shelf Filing Date, with respect to a Shelf
Registration, as prescribed by Sections 2 and 3, respectively, and use its
reasonable best efforts to cause each such Registration Statement to become effective
and remain continuously effective as provided in this Agreement; provided that, if (i) such filing is
pursuant to Section 3 or (ii) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto, (A) the
Company shall notify the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating
Broker-Dealer, the managing underwriters, if any, and their counsel of such
filing at least five Business Days prior to making such filing, (B) if requested,
the Company shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and their
counsel a reasonable opportunity to review, and shall make available for
inspection by such Persons, copies of all such documents (including copies of
any documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed and such financial and other information and books and
records of the Company as shall be necessary, in the opinion of Special Counsel
and the respective counsels to such Participating Broker-Dealers and
underwriters, to conduct a reasonable due diligence investigation within the
meaning of the Securities Act, and (C) the Company shall cause the
members, managers, officers, directors and employees of the Company, and
counsel and independent certified public accountants of the Company, to respond
to such inquiries as shall be necessary, in the opinion of Special Counsel and
the respective counsels to such Participating Broker-Dealers and underwriters,
to conduct a reasonable due diligence investigation within the meaning of the
Securities Act.  The Company may require
each Holder to agree to keep confidential any non-public information relating
to the Company received by such Holder and not to disclose such information
(other than to an affiliate or prospective purchaser who agrees to respect the
confidentiality provisions of this Section 5(a)) until such information
has been made generally available to the public unless the release of such
information is required by law or necessary to respond to inquiries of regulatory
authorities.  The Company shall not file
any Registration Statement or Prospectus or any amendments or supplements
thereto which the Holders must be afforded an opportunity to review prior to
the filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such Registration
Statement, their Special Counsel, any Participating Broker-Dealer


 


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or the managing underwriters, if any, or their counsel shall reasonably
object to such filing within five Business Days after receipt of the Company’s
notice of filing described above in this Section 5(a); provided, however,
that this prohibition shall not apply to any amendment or supplement to any
Registration Statement or Prospectus that, in the reasonable judgment of
counsel to the Company, is necessary in order to make the statements in such
Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which the statements were made) not misleading, or in
order for such Registration Statement or Prospectus to comply with applicable
law.


 


(b)           Provide an indenture
trustee for the Registrable Securities or the Exchange Securities, as the case
may be, and cause the Indenture (or other indenture relating to the Registrable
Securities) to be qualified under the TIA not later than the effective date of
the first Registration Statement; in connection therewith, effect such changes
to such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.


 


(c)           Prepare and file with
the SEC such pre-effective amendments and post-effective amendments to the
Registration Statement as may be necessary in order to cause the Registration
Statement to become effective and to keep such Registration Statement
continuously effective for the time periods required hereby; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
Applicable Law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Securities Act, and comply
fully with Rules 424, 430A and 462, as applicable, under the Securities
Act in a timely manner; and comply in all material respects with the provisions
of the Securities Act and the Exchange Act applicable thereto with respect to
the disposition of all securities covered by such Registration Statement, as so
amended, or in such Prospectus, as so supplemented, in accordance with the intended
methods of distribution set forth in such Registration Statement, as so
amended, and such Prospectus, as so supplemented.


 


(d)           Furnish to such selling
Holders and Participating Broker-Dealers who so request (i) upon the
Company’s receipt, a copy of the order of the SEC declaring such Registration
Statement and any post-effective amendment thereto effective, (ii) at
least one copy of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents incorporated therein
by reference and all exhibits (including exhibits incorporated by reference) to
such Registration Statement and each such amendment and supplement), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary prospectus and each supplement thereto),
and such reasonable number of copies of the final Prospectus as filed by the
Company pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act, and (iv) at least
one copy of such other documents as any such Person may reasonably request to
facilitate the offering and disposition of the Registrable Securities owned by
such Person.  The Company hereby consents
to the use of the Prospectus by each of the selling Holders of Registrable Securities
and by each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Securities covered by,


 


11





















 


or the sale by Participating Broker-Dealers of the Exchange Securities
pursuant to, such Prospectus and any amendment or supplement thereto.


 


(e)           If (A) a Shelf
Registration is filed pursuant to Section 3 or (B) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, notify the selling Holders of Registrable Securities, their Special
Counsel, each Participating Broker-Dealer and the managing underwriters, if
any, promptly (but in any event within two Business Days), and, if requested by
such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or Registration Statement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings for that purpose, (iii) of
the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Securities or the Exchange Securities to be
sold by any Participating Broker-Dealer for offer or sale in any jurisdiction,
or the contemplation, initiation or threatening of any proceeding for such
purpose, (iv) of the happening of any event that makes any statement made
in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any additions to or changes in
such Registration Statement, Prospectus or documents so that it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
(in the case of a Prospectus, in light of the circumstances under which such
statements were made) not misleading, (v) of the Company’s reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate, and (vi) of any request by the SEC for amendments to the
Registration Statement or supplements to the Prospectus or for additional information
relating thereto.


 


(f)            Use its best efforts
to register or qualify, and, if applicable, to cooperate with the selling
Holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of, Registrable Securities
to be included in a Registration Statement for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriters reasonably
request in writing; and, if Securities are offered other than through an
Underwritten Offering, the Company shall cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(f) at the expense of the Company; keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Securities covered by the applicable
Registration Statement; provided,
however, that none of the Company
shall be required to (i) register or qualify generally to do business in
any jurisdiction where it is not then so qualified, (ii) take any action
that would subject it to service of process in suits other than those arising
out of the offering or sale of the Securities in any jurisdiction where it is
not then so subject or


 


12





















 


(iii) take any action that would subject it to general taxation in respect
of doing business in any such jurisdiction where it is not then so subject.


 


(g)           Use its reasonable best
efforts to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Securities for sale in any jurisdiction, and, if any such order is issued, use
its reasonable best efforts to obtain the withdrawal or lifting of any such
order at the earliest possible time.


 


(h)           If (i) a Shelf
Registration is filed pursuant to Section 3 or (ii) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, and if requested by the managing underwriters, if any, such Participating
Broker-Dealer or the Holders of a majority in aggregate principal amount of the
Registrable Securities, (A) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, or such Holders reasonably request to be included therein
as required to comply with any Applicable Law and (B) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has have received notification of such matters
required by Applicable Law to be incorporated in such Prospectus supplement or
post-effective amendment.


 


(i)            If (i) a Shelf
Registration is filed pursuant to Section 3 or (ii) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, cooperate with the selling Holders, such Participating Broker-Dealer
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company (“DTC”); and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, such Participating Broker-Dealer or the Holders
may request.


 


(j)            If (i) a Shelf
Registration is filed pursuant to Section 3 or (ii) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, upon the occurrence of any event contemplated by Section 5(e)(iv),
5(e)(v) or 5(e)(vi), as promptly as practicable prepare a post-effective
amendment to the Registration Statement, a supplement to the related Prospectus
or a supplement or amendment to any such 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 being
sold thereunder or to the purchasers of the Exchange Securities to whom such
Prospectus will be delivered by a Participating Broker-Dealer, such Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and, if SEC review is required, use its reasonable best efforts to
cause such post-effective amendment to be declared effective as soon as practicable.


 


13





















 


(k)           Use its reasonable best
efforts to cause the Securities covered by a Registration Statement to be rated
with the appropriate rating agencies, if appropriate, and if so requested by
the holders of a majority in aggregate principal amount of Securities covered
by such Registration Statement or the managing underwriters, if any.


 


(l)            Prior to the effective
date of the first Registration Statement relating to the Securities, (i) provide
the applicable trustee with printed certificates for the Securities in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for each of
the Securities.


 


(m)          Use its reasonable best
efforts to cause all Securities covered by such Registration Statement to be
listed on each securities exchange, if any, on which similar debt securities
issued by the Company are then listed.


 


(n)           If a Shelf Registration
is filed pursuant to Section 3, enter into such agreements (including, if
requested by the underwriter(s), if any, an underwriting agreement in form,
scope and substance as is customary in Underwritten Offerings) and take all
such other actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or, if the registration is not
an Underwritten Offering, the Holders of a majority in aggregate principal
amount of Registrable Securities being sold) in order to expedite or facilitate
the registration or the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, (i) make
such representations and warranties to the Holders and the underwriters, if
any, with respect to the business of the Company and its subsidiaries, if any,
and the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
Underwritten Offerings, and confirm the same if and when reasonably requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and Special Counsel), addressed to each selling
Holder and each of the underwriters, if any, covering the matters customarily
covered in opinions requested in Underwritten Offerings; (iii) obtain “cold
comfort” letters and updates thereof (which letters and updates (in form, scope
and substance) shall be reasonably satisfactory to the managing underwriters,
if any, or, if the registration is not an Underwritten Offering, Special
Counsel) from the independent certified public accountants of the Company (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 and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters and each
selling Holder, such letters to be in customary form and covering matters of
the type customarily covered in “cold comfort” letters in connection with
Underwritten Offerings and such other matters as reasonably requested by the
managing underwriters, if any, or, if the registration is not an Underwritten
Offering, the Holders of a majority in aggregate principal amount of
Registrable Securities being sold; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries, if any, made pursuant to
clause (i) above and to evidence compliance with any conditions


 


14





















 


contained in the underwriting agreement or other similar agreement
entered into by the Company.


 


(o)           Comply with all
applicable rules and regulations of the SEC and make generally available
to their respective security holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
after the end of any 12-month period no later than the number of days permitted
for the filing of Quarterly Reports on Form 10-Q by filers who are not
accelerated filers (as defined in the Exchange Act) (or after the end of any 12-month
period if such period is a fiscal year no later than the number of days
permitted for the filing of Annual Reports on Form 10-K by filers who are
not accelerated filers (as defined in the Exchange Act)) (i) commencing at
the end of the fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.


 


(p)           Upon consummation of an
Exchange Offer or Private Exchange, obtain an opinion of counsel to the Company
(in form, scope and substance reasonably satisfactory to the Initial
Purchaser), addressed to all Holders participating in the Exchange Offer or
Private Exchange, as the case may be, to the effect that (i) the Company
has duly authorized, executed and delivered the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture and (ii) the
Exchange Securities or the Private Exchange Securities, as the case may be, and
the Indenture constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforcement may be subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally and (B) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity or
at law).


 


(q)           If an Exchange Offer or
Private Exchange is to be consummated, upon delivery of the Registrable
Securities by such Holders to the Company (or to such other Person as directed
by the Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or caused to be marked,
on such Registrable Securities that such Registrable Securities are being
cancelled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, and in no event shall such Registrable
Securities be marked as paid or otherwise satisfied.


 


(r)            Cooperate with each
seller of Registrable Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the NASD.


 


(s)           Use its reasonable best
efforts to take all other steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated hereby.


 


Each Holder and each Participating Broker-Dealer agrees by acquisition
of such Registrable Securities or Exchange Securities that, upon receipt of
written notice from the Company of the happening of any event of the kind
described in Section 5(e)(ii), 5(e)(iii), 5(e)(iv),


 


15





















 


5(e)(v) or 5(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a 5(e)(iv) event,
and elsewhere in a notice of a 5(e)(ii), 5(e)(iv), 5(e)(v) or 5(e)(vi) event)
of such Securities covered by such Registration Statement or Prospectus until
the earlier of (i) such Holder’s receipt of the copies of the amended or
supplemented Prospectus contemplated by Section 5(j); or (ii) the
time such Holder is advised in writing (the “Advice”)
by the Company that offers or sales in a particular jurisdiction may be
resumed, or that the use of the applicable Prospectus may be resumed, as the
case may be, and has received copies of any amendments or supplements
thereto.  If the Company shall give such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of such
Securities covered by such Registration Statement shall have received (x) the
copies of the amended or supplemented Prospectus contemplated by Section 5(j)
or (y) the Advice.


 


6.             Registration Expenses.


 


(a)           All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Exchange Offer is consummated
or the Exchange Offer Registration Statement or a Shelf Registration is filed
or becomes effective, including, without limitation:


 


(i)            all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Securities or Exchange Securities
and determination of the eligibility of the Registrable Securities or Exchange
Securities for investment under the laws of such jurisdictions (x) where the
Holders are located, in the case of the Exchange Securities, or (y) as provided
in Section 5(f), in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period));


 


(ii)           printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities or Exchange Securities in a form eligible for deposit
with DTC and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriters, if any, or, in respect of Registrable
Securities or Exchange Securities to be sold by a Participating Broker-Dealer
during the Applicable Period, by the Holders of a majority in aggregate
principal amount of the Registrable Securities included in any Registration
Statement or of such Exchange Securities, as the case may be);


 


(iii)          messenger,
telephone, duplication, word processing and delivery expenses incurred by the
Company in the performance of its obligations hereunder;


 


(iv)          fees
and disbursements of counsel for the Company and, subject to Section 6(b),
the Holders;


 


16





















 


(v)           fees
and disbursements of all independent certified public accountants referred to
in Section 5(n)(iii) (including, without limitation, the expenses of
any special audit and “cold comfort” letters required by or incident to such performance);


 


(vi)          fees
and expenses of any “qualified independent underwriter” or other independent
appraiser participating in an offering pursuant to Section 3 of Schedule E
to the By-laws of the NASD, but only where the need for such a “qualified
independent underwriter” arises due to a relationship with the Company;


 


(vii)         Securities
Act liability insurance, if the Company so desires such insurance;


 


(viii)        fees
and expenses of all other Persons, including special experts, retained by the
Company; internal expenses of the Company (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), and the expenses of any annual audit; and


 


(ix)           rating
agency fees and the fees and expenses incurred in connection with the listing
of the Securities to be registered on any securities exchange.


 


(b)           The Company shall
reimburse the Holders for the reasonable fees and disbursements of not more
than one counsel (in addition to appropriate local counsel) chosen by the
Holders of a majority in aggregate principal amount of the Registrable Securities
to be included in any Registration Statement and other reasonable and necessary
out-of-pocket expenses of the Holders incurred in connection with the
registration of the Registrable Securities in an amount not to exceed $35,000.


 


7.             Indemnification.


 


(a)           Indemnification by the Company.  The Company, shall, without limitation as to
time, indemnify and hold harmless each Holder and each Participating
Broker-Dealer, each Person who controls (within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act (any of
such persons being hereinafter referred to as a “controlling person”)) each such Holder and any such
Participating Broker-Dealer and the members, managers, officers, directors,
partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person (collectively, the “Holder Indemnified Parties”), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys’ fees) and expenses (including, without limitation, costs
and expenses incurred in connection with investigating, preparing, pursuing or
defending against any of the foregoing) (collectively, “Losses”), as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of a preliminary
prospectus, Prospectus or form of prospectus, or any amendment or supplement
thereto, in light of the circumstances under which they were made) not
misleading; provided, that the
Company shall not be liable under the indemnity provided in this Section 7(a) to
any Holder Indemnified Party for any Losses that (A) result solely from an
untrue statement of a material


 


17





















 


fact contained in, or the omission of a material fact from, any
preliminary prospectus, which untrue statement or omission was completely
corrected in the Prospectus (as then amended or supplemented) if it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (1) such Holder Indemnified Party sold the Registrable
Securities or Exchange Securities to the person alleging such Loss and failed
to send or give, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as then amended or supplemented), if required by law to have
so delivered it, and (2) the Company had previously furnished copies of
the corrected Prospectus to such Holder Indemnified Party within a reasonable
amount of time prior to such sale or such confirmation, and (3) the
corrected Prospectus, if delivered, would have been a complete defense against
the person asserting such Loss; or (B) are based upon information relating
to such Holder or Participating Broker-Dealer and furnished in writing to the
Company by such Holder or Participating Broker-Dealer expressly for use in such
Registration Statement, preliminary prospectus or Prospectus, or amendment or
supplement thereto.  The Company shall
also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
members, managers, officers, directors, agents and employees and each of their
respective controlling persons to the same extent as provided above with
respect to the indemnification of the Holder Indemnified Parties.


 


(b)           Indemnification by Holders of Registrable Securities.  In connection with any Registration
Statement, preliminary prospectus, Prospectus or form of prospectus, or any
amendment or supplement thereto, in which a Holder is participating, such
Holder shall furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any such Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, any amendment or
supplement thereto, and shall, severally and not jointly, without limitation as
to time, indemnify and hold harmless the Company, its members, managers, directors,
officers, agents and employees, each controlling person of the Company and the
members, managers, directors, officers, agents or employees of such controlling
persons, to the fullest extent lawful, from and against any and all Losses, as
incurred, arising out of or based upon any untrue or alleged untrue statement
of a material fact contained in any such Registration Statement, preliminary
prospectus, Prospectus or form of prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a preliminary prospectus, Prospectus or form of prospectus, or any
amendment or supplement thereto in light of the circumstances under which they
were made) not misleading to the extent, but only to the extent, that such
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact is contained in or omitted from any
information so furnished in writing by such Holder to the Company expressly for
use in any Registration Statement, preliminary prospectus, Prospectus or form
of prospectus, or any amendment or supplement thereto.  In no event shall the liability of any
selling Holder be greater in amount than such Holder’s Maximum Contribution
Amount (as defined below).


 


(c)           Conduct of Indemnification Proceedings.  If any Proceeding shall be brought or
asserted against any Person entitled to indemnification hereunder (an “indemnified party”), such indemnified party
shall promptly notify the party or parties from which such indemnification is
sought (the “indemnifying parties”)
in writing; provided, that the
failure to so notify the


 


18





















 


indemnifying parties shall not relieve the indemnifying parties from
any obligation or liability except to the extent (but only to the extent) that
it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal) that the indemnifying parties have been
prejudiced materially by such failure.


 


The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party, within 20 Business Days after receipt
of written notice from such indemnified party of such Proceeding, to assume, at
their expense, the defense of any such Proceeding; provided, that an indemnified party shall have the right to
employ separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless:  (i) the indemnifying parties have agreed
to pay such fees and expenses; (ii) the indemnifying parties shall have
failed promptly to assume the defense of such Proceeding or shall have failed
to employ counsel reasonably satisfactory to such indemnified party; or (iii) the
named parties to any such Proceeding (including any impleaded parties) include
both such indemnified party and one or more indemnifying parties (or any
affiliates or controlling persons of any of the indemnifying parties), and such
indemnified party shall have been advised by counsel that there may be one or
more defenses available to such indemnified party that are in addition to, or
in conflict with, those defenses available to the indemnifying party or such
affiliate or controlling person (in which case, if such indemnified party
notifies the indemnifying parties in writing that it elects to employ separate
counsel at the expense of the indemnifying parties, the indemnifying parties
shall not have the right to assume the defense thereof and the reasonable fees
and expenses of such counsel shall be at the expense of the indemnifying parties;
it being understood, however, that, the indemnifying parties shall not, in
connection with any one such Proceeding or separate but substantially similar
or related Proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party).


 


No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to
the exceptions and limitations set forth above, to indemnify and hold harmless
each indemnified party from and against any and all Losses by reason of such
settlement or judgment.  The indemnifying
party shall not consent to the entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
that may arise from such Proceeding or the subject matter thereof (whether or
not any indemnified party is a party thereto).


 


(d)           Contribution.  If the indemnification provided for in this Section 7
is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 7
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 7), then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall have a joint and several obligation to contribute
to the amount paid or payable by such indemnified party as a result of such
Losses, (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party, on the


 


19





















 


one hand, and such indemnified party, on the other hand, from the sale
of Registrable Securities, or (ii) if the allocation provided by clause (i) above
is not permitted by Applicable Law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations.  The
relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any 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 indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
any such statement or omission.  The
amount paid or payable by an indemnified party as a result of any Losses shall
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any Proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in Section 7(a) or
7(b) was available to such party.


 


The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(d), an
indemnifying party that is a selling Holder shall not be required to
contribute, in the aggregate, any amount in excess of such Holder’s Maximum
Contribution Amount.  A selling Holder’s “Maximum Contribution Amount” shall equal
the excess, if any, of (i) the aggregate proceeds received by such Holder
pursuant to the sale of the Registrable Securities giving rise to such
indemnification obligation over (ii) the aggregate amount of damages that
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.  The
Holders’ obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective principal amount of the Registrable
Securities held by each Holder hereunder and not joint.


 


The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the indemnifying parties otherwise may
have to the indemnified parties.


 


8.             Rule 144 and Rule 144A.


 


The Company covenants that (a) during any period that it is
required to file reports under the Securities Act or the Exchange Act, it shall
file all reports required to be filed by it in a timely manner in order to
permit resales of Registrable Securities pursuant to Rule 144 under the
Securities Act and (b) during any period that it is not required to file
such reports, it shall, upon the request of any Holder, make available to each
Holder or beneficial owner of Registrable Securities and to any prospective
purchaser of Registrable Securities designated by such Holder or beneficial
owner the information required by Rule 144A(d)(4) under the Securities
Act to permit resales of Registrable Securities pursuant to Rule 144A.  The Company shall take such


 


20





















 


further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 and Rule 144A. 
Upon the request of any Holder, the Company shall deliver to such Holder
a written statement as to whether the Company has complied with such
information requirements.  Nothing in
this Section 8 shall be deemed to require the Company to register any
Securities pursuant to the Exchange Act.


 


9.             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 Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.


 


No Holder 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, underwriting agreements and
other documents reasonably required under the terms of such underwriting arrangements.


 


10.           Miscellaneous.


 


(a)           Remedies. 
In the event of a breach by the Company of any of its obligations under
this Agreement, each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of the Initial
Purchaser, in the Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this Agreement.  The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by the Company of any of the provisions of this Agreement and hereby further
agree that, in the event of any action for specific performance in respect of
such breach, the Company shall waive the defense that a remedy at law would be
adequate.


 


(b)           No Inconsistent Agreements.  The Company has not entered into, as of the
date hereof, and shall not enter into, after the date of this Agreement, any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.


 


(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 at
least a majority of the then outstanding aggregate principal amount of Registrable
Securities; provided that
Sections 4(a) and 7 shall not be amended, modified or supplemented, and
waivers or consents to departures from this proviso may not be given, unless
the Company has obtained the written consent of each Holder.  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect


 


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to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority in aggregate principal amount of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement; provided that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.


 


(d)           Notices. 
All notices and other communications (including, without limitation, any
notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, certified first-class mail
with return receipt requested, next-day air courier or facsimile:


 


(i)            if
to a Holder, at the most current address given by such Holder to the Company in
accordance with the provisions of this Section 10(d), which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar (as defined in the Indenture), with a copy to Cahill Gordon &
Reindel LLP, 80 Pine Street, New York, New York 10005, facsimile number (212)
269-5420, Attention:  Helene R. Banks, Esq.;
and


 


(ii)           if
to the Company, initially at The Wornick Company, 10825 Kenwood Road,
Cincinnati, Ohio 45242, facsimile number: (956) 682-7810, Attention:  Larry L. Rose, with copies to Schulte Roth &
Zabel LLP, 919 Third Avenue, New York, 10022, facsimile number (212) 593-5955,
Attention:  Benjamin M. Polk, Esq.
and Michael R. Littenberg, Esq. and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section 10(d).


 


All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier, if sent by next-day air
courier; and when receipt is acknowledged by the addressee, if sent by facsimile.


 


Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture 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 and assigns of each of the parties hereto,
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 Securities in violation of the Purchase Agreement or the
Indenture.


 


(f)            Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.


 


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(g)           Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.  When a reference is made in this Agreement to
a Section, paragraph, subparagraph, Schedule or Exhibit, such reference
shall mean a Section, paragraph, subparagraph, Schedule or Exhibit to
this Agreement unless otherwise indicated. 
The words “include,” “includes,” and “including” when used in this Agreement shall be deemed in each
case to be followed by the words “without
limitation.”  The phrases “the date of this Agreement,” “the date hereof,” and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to February 11,
2005.  The words “hereof,” “herein,”
“herewith,”  “hereby”
and “hereunder” and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement.


 


(h)           GOVERNING LAW.  THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW
YORK CIVIL PRACTICE LAWS AND RULES.  THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.  THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY
JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.  THE
COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS
SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
INITIAL PURCHASER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY
OTHER JURISDICTION.


 


(i)            Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their respective reasonable best efforts to find
and employ an alternative means to


 


23





















 


achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.


 


(j)            Entire Agreement.  This Agreement is intended by the parties as
a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. 
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein, with respect to the registration
rights granted by the Company in respect of securities sold pursuant to the
Purchase Agreement.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


(k)           Attorneys’ Fees.  In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys’ fees in addition to its costs and
expenses and any other available remedy.


 


(l)            Securities Held by the Company or its Affiliates.  Whenever the consent or approval of Holders
of a specified percentage of the principal amount of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) (other than
Holders deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.


 


[signature pages follow this page]


 


24





















 


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


 


	
   

  	
  TWC HOLDING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert B.
  McKeon

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TWC HOLDING CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  J. Campbell

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Campbell

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
					



 


25





















 


	
  ACCEPTED AND AGREED TO:

  
	
   

  
	
  CIBC WORLD MARKETS CORP.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Cedric
  M. Henley

  	
   

  
	
   

  	
  Name:

  	
  Cedric M.
  Henley

  
	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  	
  CIBC World
  Markets Corp., AS AGENT

  
				



 


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