Exhibit 4.7
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION
RIGHTS AGREEMENT dated August 20, 2004 (the
“Agreement”) is entered into by and among Standard Aero
Holdings, Inc., a Delaware corporation (the “Company”),
the guarantors listed in Schedule 1 hereto or that may later
become a party hereto pursuant to a joinder agreement (the
“Guarantors”), and J.P. Morgan Securities Inc.
(“JPMorgan”), Lehman Brothers, Inc. and Credit Suisse
First Boston LLC (the “Initial Purchasers”).
The
Company, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated August 17, 2004 (the
“Purchase Agreement”), which provides for the sale by
the Company to the Initial Purchasers of $200,000,000 aggregate
principal amount of the Company’s 8 1 / 4
% Senior Subordinated Notes due 2014
(the “Securities”) which will be guaranteed on an
unsecured senior subordinated basis by each of the Guarantors. As
an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under
the Purchase Agreement. The representations, warranties and
obligations of and relating to each of the Guarantors shall not
become effective until the Acquisition Closing (as defined in the
Purchase Agreement), at which time such representations, warranties
and agreements shall become effective pursuant to the terms of a
joinder agreement as required by Section 6(j) of this Agreement and
thereafter all representations, warranties, agreements and
obligations of the Company and the Guarantors hereunder shall be
joint and several.
In
consideration of the foregoing, the parties hereto agree as
follows:
1.
Definitions . As used in this Agreement, the following terms
shall have the following meanings:
“Business
Day” shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized
or required by law to remain closed.
“Closing
Date” shall mean the Closing Date as defined in the Purchase
Agreement.
“Company”
shall have the meaning set forth in the preamble and shall also
include the Company’s successors.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended from time to time.
“Exchange
Dates” shall have the meaning set forth in
Section 2(a)(ii) hereof.
“Exchange
Offer” shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
“Exchange
Offer Registration” shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
“Exchange
Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such
registration statement, in each case including the Prospectus
contained therein, all exhibits thereto and any document
incorporated by reference therein.
“Exchange
Securities” shall mean senior subordinated Securities issued
by the Company and guaranteed by the Guarantors under the Indenture
containing terms identical in all material respects to the
Securities (except that the Exchange Securities will not be subject
to restrictions on transfer or to any increase in annual interest
rate for failure to comply with this Agreement) and to be offered
to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
“Guarantors”
shall have the meaning set forth in the preamble and shall also
include any Guarantors’ successors.
“Holders”
shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become owners of Registrable
Securities under the Indenture; provided that for purposes of
Sections 2, 4 and 5 of this Agreement, the term
“Holders” shall include Participating
Broker-Dealers.
“Indenture”
shall mean the Indenture relating to the Securities dated as of
August 20, 2004 among the Company, Wells Fargo Bank, National
Association, as trustee, and the Guarantors that become a party
thereto by supplemental indentures as required pursuant to the
Purchase Agreement, as the same may be amended from time to time in
accordance with the terms thereof.
“Initial
Purchasers” shall have the meaning set forth in the
preamble.
“Inspector”
shall have the meaning set forth in Section 3(a)(xiii)
hereof.
“JPMorgan”
shall have the meaning set forth in the preamble.
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“Majority
Holders” shall mean the Holders of a majority of the
aggregate principal amount of the outstanding Registrable
Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is
required hereunder, any Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount; and provided,
further, that if the Company shall issue any additional Securities
under the Indenture prior to consummation of the Exchange Offer or,
if applicable, the effectiveness of any Shelf Registration
Statement, such additional Securities and the Registrable
Securities to which this Agreement relates shall be treated
together as one class for purposes of determining whether the
consent or approval of Holders of a specified percentage of
Registrable Securities has been obtained.
“Participating
Broker-Dealers” shall have the meaning set forth in Section
4(a) hereof.
“Person”
shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
“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 such prospectus, and in each case including any document
incorporated by reference therein.
“Purchase
Agreement” shall have the meaning set forth in the
preamble.
“Registrable
Securities” shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities has been
declared effective under the Securities Act and such Securities
have been exchanged or disposed of pursuant to such Registration
Statement, (ii) when such Securities are eligible to be sold
pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act or (iii) when
such Securities cease to be outstanding.
“Registration
Expenses” shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with
this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of
counsel for any Underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments
or
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supplements thereto, any
underwriting agreements, securities sales agreements or other
similar agreements and any other documents relating to the
performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to
the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its
counsel, (vii) the fees and disbursements of counsel for the
Company and the Guarantors and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the
independent public accountants of the Company and the Guarantors,
including the expenses of any special audits or
“comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees
and expenses set forth in clause (ii) above) or the Holders
and underwriting discounts and commissions, brokerage 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 and the Guarantors that covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of
this Agreement 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 any document incorporated by reference
therein.
“SEC”
shall mean the United States Securities and Exchange
Commission.
“Securities
Act” shall mean the Securities Act of 1933, as amended from
time to time.
“Shelf
Additional Interest Date” shall have the meaning set forth in
Section 2(d) hereof.
“Shelf
Effectiveness Period” shall have the meaning set forth in
Section 2(b) hereof.
“Shelf
Registration” shall mean a registration effected pursuant to
Section 2(b) hereof.
“Shelf
Registration Statement” shall mean a “shelf”
registration statement of the Company and the Guarantors that
covers all or a portion of the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable
Securities are to be covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, 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 any document
incorporated by reference therein.
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“Shelf
Request” shall have the meaning set forth in Section 2(b)
hereof.
“Staff”
shall mean the staff of the SEC.
“Target
Registration Date” shall have the meaning set forth in
Section 2(d) hereof.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as
amended from time to time.
“Trustee”
shall mean the trustee with respect to the Securities under the
Indenture.
“Underwriter”
shall have the meaning set forth in Section 3(e) hereof.
“Underwritten
Offering” shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the
public.
2.
Registration Under the Securities Act . (a) To the
extent not prohibited by any applicable law or applicable
interpretations of the Staff, the Company and the Guarantors shall
use their reasonable best efforts to cause to be filed an Exchange
Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for Exchange Securities and
have such Exchange Offer Registration Statement remain effective
until the earlier of (i)180 days after the closing of the Exchange
Offer or (ii) a date when all Registrable Securities covered
by the Exchange Offer Registration Statement have been sold
pursuant thereto. The Company and the Guarantors shall commence the
Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer within 360 days
after issuance of the Securities. The Company and the Guarantors
will use their reasonable best efforts to complete the Exchange
Offer not later than 30 Business Days after the effective date of
the Exchange Offer Registration Statement.
The
Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal
and other accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable
law, substantially the following:
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(i)
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that the Exchange Offer is being
made pursuant to this Agreement and that all Registrable Securities
validly tendered and not properly withdrawn will be accepted for
exchange;
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(ii)
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the
dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
“Exchange Dates”);
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(iii)
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that any Registrable Security not
tendered will remain outstanding and continue to accrue interest
but will not retain any rights under this Agreement;
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(iv)
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that any Holder electing to have a
Registrable Security exchanged pursuant to the Exchange Offer will
be required to surrender such Registrable Security, together with
the appropriate letters of transmittal, to the institution and at
the address and in the manner specified in the notice, prior to the
close of business on the last Exchange Date; and
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(v)
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that any Holder will be entitled to
withdraw its election, not later than the close of business on the
last Exchange Date, by sending to the institution and at the
address specified in the notice, 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.
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As
a condition to participating in the Exchange Offer, a Holder will
be required to represent to the Company and the Guarantors that
(i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the
time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Securities in violation of the provisions of the
Securities Act, (iii) it is not an “affiliate”
(within the meaning of Rule 405 under the Securities Act) of the
Company or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities that were acquired
as a result of market-making or other trading activities, then such
Holder will deliver a Prospectus in connection with any resale of
such Exchange Securities.
As
soon as practicable after the last Exchange Date, the Company and
the Guarantors shall:
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(i)
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accept for exchange Registrable
Securities or portions thereof validly tendered and not properly
withdrawn pursuant to the Exchange Offer; and
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(ii)
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deliver, or cause to be delivered,
to the Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Company and issue,
and cause the Trustee to promptly authenticate and deliver to each
Holder, Exchange Securities equal in principal amount to the
principal amount of the Registrable Securities surrendered by such
Holder.
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The
Company and the Guarantors shall use their reasonable best efforts
to complete the Exchange Offer as provided above and shall comply
with the applicable requirements of the Securities Act, the
Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does
not violate any applicable law or applicable interpretations of the
Staff.
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(b) In the
event that (i) the Company and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above
is not available or may not be completed as soon as practicable
after the last Exchange Date because it would violate any
applicable law or applicable interpretations of the Staff,
(ii) the Exchange Offer is not for any other reason completed
by August 15, 2005 or (iii) upon receipt of a written
request (a “Shelf Request”) from any Initial Purchaser
after the date of the commencement of the Exchange Offer
representing that it holds Registrable Securities that are
ineligible to be exchanged in the Exchange Offer, the Company and
the Guarantors shall use their reasonable best efforts to cause to
be filed as soon as practicable after such determination, date or
Shelf Request, as the case may be, a Shelf Registration Statement
providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement
declared effective by the SEC.
In
the event that the Company and the Guarantors are required to file
a Shelf Registration Statement pursuant to clause (iii) of the
preceding sentence, the Company and the Guarantors shall use their
reasonable best efforts to file and have declared effective by the
SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the
Initial Purchasers after completion of the Exchange
Offer.
The
Company and the Guarantors agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously
effective until the expiration of the period referred to in Rule
144(k) (or any similar rule then in force, but not Rule 144A)
under the Securities Act with respect to the Registrable Securities
or such shorter period that will terminate when all the Registrable
Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (the “Shelf
Effectiveness Period”). The Company and the Guarantors
further agree to supplement or amend the Shelf Registration
Statement and the related Prospectus if required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Holder of
Registrable Securities with respect to information relating to such
Holder, and to use their reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement
and Prospectus to become usable as soon as thereafter practicable.
The Company and the Guarantors agree 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) The
Company and the Guarantors shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or
Section 2(b) hereof. Each Holder shall pay all underwriting
discounts and commissions, brokerage commissions
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and transfer taxes, if any,
relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has
been declared effective by the SEC.
In
the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required pursuant to
Section 2(b)(i) or 2(b)(ii) hereof, is not declared effective
on or prior to August 15, 2005 (the “Target Registration
Date”), the annual interest rate on the Registrable
Securities will be increased by 1.0% and shall remain at that
increased rate until the Exchange Offer is completed or the Shelf
Registration Statement, if required hereby, is declared effective
by the SEC or the Securities become freely tradable under the
Securities Act. In the event the Company receives a Shelf Request
pursuant to Section 2(b)(iii), and the Shelf Registration
Statement required to be filed thereby is not declared effective by
the later of (x) August 15, 2005 or (y) 90 days
after the delivery of such Shelf Request (such later date, the
“Shelf Additional Interest Date”), then the annual
interest rate on the Registrable Securities will be increased by
1.0% payable commencing from one day after the Shelf Additional
Interest Date and shall remain at that increased rate until the
Shelf Registration Statement is declared effective.
If
the Shelf Registration Statement, if required hereby, has been
declared effective and thereafter either ceases to be effective or
the Prospectus contained therein ceases to be usable at any time
during the Shelf Effectiveness Period, and such failure to remain
effective or usable exists for more than 45 days (whether or
not consecutive) in any 12-month period, then the annual interest
rate on the Registrable Securities will be increased by 1.0% per
annum commencing on the 46th day in such 12-month period and ending
on such date that the Shelf Registration Statement has again been
declared effective or the Prospectus again becomes
usable.
(e) Without
limiting the remedies available to the Initial Purchasers and the
Holders, the Company and the Guarantors acknowledge that any
failure by the Company or the Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) hereof may result
in material irreparable injury to the Initial Purchasers or the
Holders 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 or
any Holder may obtain such relief as may be required to
specifically enforce the Company’s and the Guarantors’
obligations under Section 2(a) and Section 2(b) hereof.
3.
Registration Procedures . (a) In connection with their
obligations pursuant to Section 2(a) and Section 2(b) hereof, the
Company and the Guarantors shall as expeditiously as
possible:
(i) prepare
and file with the SEC a Registration Statement on the appropriate
form under the Securities Act, which form (x) shall be
selected by the Company and the
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Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the Holders thereof and (z) shall
comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required
by the SEC to be filed therewith; and use their reasonable best
efforts to cause such Registration Statement to become effective
and remain effective for the applicable period in accordance with
Section 2 hereof;
(ii) prepare
and file with the SEC such amendments and post-effective amendments
to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to
be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the
Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities
Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange
Securities;
(iii) in the
case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for
such 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, as such Holder, counsel or
Underwriter may reasonably request, in order to facilitate the sale
or other disposition of the Registrable Securities thereunder; and
the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the Holders of Registrable
Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in
the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(iv) use
their reasonable best efforts to register or qualify 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 shall reasonably
request in writing by the time the applicable Registration
Statement is declared effective by the SEC; cooperate with such
Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and
all other acts and things that may be reasonably necessary or
advisable to enable each Holder to complete the disposition in each
such jurisdiction of the Registrable Securities owned by such
Holder; provided that neither the Company nor any Guarantor
shall