Exhibit 4.1
WARNACO INC.
8 7/8% Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 12, 2003
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Warnaco Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell its 8 7/8% Senior Notes due
2013 (the "Notes") to certain purchasers (the "Initial Purchasers"), upon the
terms set forth in a Purchase Agreement, dated as of June 5, 2003, by and among
the Company, the guarantors signatory thereto and the Initial Purchasers (the
"Purchase Agreement") relating to the initial placement of the Notes (the
"Initial Placement"). The Notes will be unconditionally guaranteed (the
"Guarantees" and, together with the Notes, the "Securities") on an unsecured
senior basis by the Company's parent company and by each of the Company's direct
and indirect subsidiaries set forth on the signature page hereto (collectively,
the "Guarantors"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
and the Guarantors agree with you for your benefit and the benefit of the
holders from time to time of the Securities (including the Initial Purchasers)
(each a "Holder" and, together, the "Holders"), 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 capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether
by contract or otherwise; and the terms "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the preamble
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of June 12, 2003, among the Company, the Guarantors and
Xxxxx Fargo Bank Minnesota, National Association, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
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"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment bank or
investment banks and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean the 8 7/8% Senior Notes due 2013
to be issued by the Company under the Indenture containing terms identical to,
and evidencing the same indebtedness as, the Securities (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from the date of their
original issue, (ii) the transfer restrictions thereon shall be eliminated and
(iii) certain provisions relating to an increase in the special rate of interest
thereon shall be eliminated), to be offered to Holders of Securities in exchange
for Securities pursuant to the Registered Exchange Offer.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Prospectus" shall mean the prospectus included in any
Registration Statement (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 Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein, if any.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company and the Guarantors to issue and deliver to the Holders of the
Securities that are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like aggregate
principal amount of the New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein, if any.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
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"Shelf Registration Period" shall have the meaning set forth
in Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) To the extent not prohibited by any applicable law or
interpretations of the Commission's staff, the Company and the
Guarantors shall prepare and, not later than 60 days following the date
of the original issuance of the Securities (or if such 60th day is not
a Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Company and the Guarantors shall use
their respective reasonable efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Act within
210 days of the date of the original issuance of the Securities (or if
such 210th day is not a Business Day, the next succeeding Business
Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly
commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange
Securities for New Securities (assuming that such Holder is not an
Affiliate of the Company, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any Person
to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) to trade such New Securities from and
after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantors 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 and related
documents;
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(ii) keep the Registered Exchange Offer open for not
less than 30 days and not more than 45 days after the date
notice thereof is mailed to the Holders (or, in each case,
longer if required by applicable law);
(iii) use their respective best efforts to keep the
Exchange Offer Registration Statement continuously effective
under the Act, supplemented and amended as required under the
Act, to ensure that it is available for sales of New
Securities by Exchanging Dealers and other persons, if any,
subject to similar prospectus delivery requirements during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan in New York City, which may be the Trustee or an
Affiliate thereof;
(v) permit Holders to withdraw tendered Securities
at any time prior to the close of business, New York time, on
the last Business Day on which the Registered Exchange Offer
is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, if requested by the Commission,
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are conducting the
Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail.
June 5, 1991); and (B) including a representation that the
Company and the Guarantors have not entered into any
arrangement or understanding with any Person to distribute the
New Securities to be received in the Registered Exchange Offer
and that the Company and the Guarantors will not issue New
Securities to any Holder participating in the Registered
Exchange Offer who fails to certify to the Company that such
Holder is acquiring the New Securities in the ordinary course
of business and has no arrangement or understanding with any
Person to participate in the distribution of the New
Securities; and
(vii) comply in all material respects with all laws
applicable to the Registered Exchange Offer.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities duly tendered
and not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 5(s) all Securities so accepted for
exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of New
Securities equal to the principal amount of the Securities of
such Holder so accepted for exchange.
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(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer
to participate in a distribution of the New Securities, if the resales
are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of
its Affiliates, (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in
Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction and such transaction
must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act. Accordingly, as a
condition to its participation in the Registered Exchange Offer, each
Holder shall be required to represent in writing to the Company and the
Guarantors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will
be acquired in the ordinary course of business;
(ii) such Holder has and will have no arrangement or
understanding with any Person to participate in the
distribution of the Securities or the New Securities within
the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company
or any of the Guarantors (or if it is an Affiliate, that it
will comply with the registration and prospectus delivery
requirements of the Act to the extent applicable).
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect
to the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Company and
the Guarantors shall issue and deliver to such Initial Purchaser or the
Person purchasing New Securities registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of
New Securities. The Company and the Guarantors shall use their
respective best efforts to cause the CUSIP Service Bureau to issue the
same CUSIP number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company and the
Guarantors determine upon advice of their outside counsel that they are
not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; (ii) for any other reason the Exchange Offer
Registration Statement is not declared effective by the Commission
under the Act within 210 days of the date of the original issuance of
the Securities or the Registered Exchange
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Offer is not consummated within 240 days of the date of the original
issuance of the Securities; (iii) any Initial Purchaser so requests
with respect to Securities that are not eligible to be exchanged for
New Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer; or (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate
in the Registered Exchange Offer or does not receive freely tradable
New Securities in the Registered Exchange Offer, other than by reason
of such Holder being an Affiliate of the Company and the Guarantors (it
being understood that the requirement that a participating
Broker-Dealer deliver the prospectus contained in the Exchange Offer
Registration Statement in connection with sales of New Securities shall
not result in such New Securities being not "freely tradable"), the
Company and the Guarantors shall effect, at their cost, a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company and the Guarantors shall, as promptly
as practicable, file with the Commission and thereafter shall use their
respective reasonable efforts to cause to be declared effective under
the Act as promptly as practicable a Shelf Registration Statement
relating to the offer and sale of the Securities or the New Securities,
as applicable, by the Holders thereof from time to time in accordance
with the methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and provided
further, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Company and the Guarantors may, if permitted by
current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation
S-K under the Act, as applicable, in satisfaction of their obligations
under this subsection with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as,
and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The Company and the Guarantors shall use their
respective best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will
terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or can
be sold pursuant to Rule 144 under the Act (in any such case,
such period being called the "Shelf Registration Period"). The
Company and the Guarantors shall be deemed not to have used
their respective best efforts to keep the Shelf Registration
Statement effective during the requisite period if they
voluntarily take any action that would result in Holders of
Securities covered thereby not being able to offer and sell
such Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by the
Company and the Guarantors in good faith
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and for valid business reasons (not including avoidance of the
Company and the Guarantors' obligations hereunder), including
the acquisition or divestiture of assets (to the extent
permitted by the terms of the Indenture), so long as the
Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable.
(iii) The Company and the Guarantors shall cause the
Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date
of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the
applicable requirements of the Act; and (B) not to contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. Special Interest. If (a) on or prior to the 60th day
following the original issue date of the Securities, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission, (b) on or prior to the 210th day following the original issue
date of the Securities, neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement has been declared effective by the Commission,
(c) on or prior to the 240th day following the original issue date of the
Securities, neither the Exchange Offer Registration Statement has been
consummated nor has the Shelf Registration Statement been declared effective, or
(d) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of
Securities or New Securities in accordance with and during the periods specified
in this Agreement (each such event referred to in clauses (a) through (d), a
"Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Transfer Restricted Securities then outstanding (in
addition to the stated interest on the Securities and New Securities) from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured. Special
Interest will accrue at a rate of 0.25% per annum during the 90-day period
immediately following the occurrence of such Registration Default and shall
increase by 0.25% per annum at the end of each subsequent 90-day period, but in
no event shall such rate exceed 1.00% per annum.
All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
As used herein, the term "Transfer Restricted Securities"
means (i) each Security until the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) each Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Act or is saleable
pursuant to Rule 144(k) under the Act. Notwithstanding anything to the contrary
in this Section 4, Special Interest shall not accrue on,
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and the Company shall not be required to pay Special Interest to a Holder of
Transfer Restricted Securities if the cause of such Registration Default is the
failure of such Holder to provide the Company with the information required of
such Holder pursuant to Item 507 or 508 of Regulation S-K under the Act.
5. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of any
Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein (including, upon request, all documents incorporated
by reference therein after the initial filing) and shall use
their respective best efforts to reflect in each such
document, when so filed with the Commission, such comments as
are reasonable and appropriate to be included in such
document;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include
the information required by Item 507 or 508 of Regulation S-K
under the Act, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell
Securities pursuant to the Shelf Registration Statement as
selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material
respects with the Act; and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, 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 not misleading.
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(c) The Company and the Guarantors shall advise you, the
Holders of Securities covered by any Shelf Registration Statement and
any Exchanging Dealer under any Exchange Offer Registration Statement
that has provided in writing to the Company and the Guarantors a
telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii) through
(v) hereof shall be accompanied by an instruction to suspend the use of
the Prospectus until the Company and the Guarantors shall have remedied
the basis for such suspension):
(i) when the Registration Statement and any
amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company and the
Guarantors of any notification with respect to the suspension
of the qualification of the securities included therein for
sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their
respective best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement or the
qualification of the securities therein for sale in any jurisdiction at
the earliest possible time.
(e) The Company and the Guarantors shall furnish to each
Holder of Securities covered by any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(f) The Company and the Guarantors shall, during the
Shelf Registration Period, deliver to each Holder of Securities covered
by any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any
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amendment or supplement thereto as such Holder may reasonably request.
The Company and the Guarantors consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including all material incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company and the Guarantors shall promptly deliver to
each Initial Purchaser, each Exchanging Dealer and each other Person
required to deliver a Prospectus during the Exchange Offer Registration
Period, without charge, as many copies of the Prospectus included in
such Exchange Offer Registration Statement and any amendment or
supplement thereto as any such Person may reasonably request. The
Company and the Guarantors consent to the use of the Prospectus or any
amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other Person that may be required to
deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the New Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or New Securities pursuant to any Registration
Statement, the Company and the Guarantors shall arrange, if necessary,
for the qualification of the Securities or the New Securities for sale
under the laws of such jurisdictions as any Holder shall reasonably
request and will maintain such qualification in effect so long as
required; provided that in no event shall the Company or the Guarantors
be obligated to qualify to do business in any jurisdiction or as a
dealer in securities where they are not then so qualified or to take
any action that would subject them to service of process in suits or
taxation, other than suits arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where they are not
then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders of Securities to facilitate the timely preparation and delivery
of certificates representing New Securities or Securities to be issued
or sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as
Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above during the period of time in
which the Company is required to maintain an effective Registration
Statement, the Company and the Guarantors shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file
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any other required document so that, as thereafter delivered to initial
purchasers of the securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number
for the Securities or the New Securities, as the case may be,
registered under such Registration Statement and provide the Trustee
with printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all
applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Act.
(n) The Company and the Guarantors shall cause the
Indenture to be qualified under the Trust Indenture Act in a timely
manner.
(o) The Company and the Guarantors may require each
Holder of Securities or New Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company and the Guarantors
such information regarding the Holder and the distribution of such
Securities or New Securities as the Company and the Guarantors may from
time to time reasonably require for inclusion in such Registration
Statement. The Company and the Guarantors may exclude from such Shelf
Registration Statement the Securities or New Securities of any Holder
that unreasonably fails to furnish such information within a reasonable
time after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall enter into such agreements and take
all other appropriate actions (including if requested an underwriting
agreement in customary form) in order to expedite or facilitate the
registration or the disposition of the Securities or New Securities,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 (or such
other provisions and procedures acceptable to the Majority Holders and
the Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 7.
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall:
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(i) make reasonably available for inspection by the
Holders of Securities or New Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company,
the Guarantors and their subsidiaries; provided, however, that
the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers by you and on
behalf of the other parties referred to herein by the counsel
designated by and on behalf of such other parties as described
in Section 6 hereof;
(ii) cause the Company and each of the Guarantors'
officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any
underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company or
any Guarantor, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, or (other than as a
result of a breach of such confidentiality provision) such
information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to
the Holders of Securities or New Securities registered
thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and
the Guarantors and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed
to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters, if any;
(v) obtain "cold comfort" letters and updates
thereof 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
selling Holder of Securities or New Securities registered
thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings; and
13
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder. Notwithstanding the
proviso to clause (ii) of this Section, the Holders (and each employee,
representative, or other agent of the Holders) may disclose to any and all
persons, without limitation of any kind, the tax treatment and any facts that
may be relevant to the tax structure of the matters covered by and relating to
this Agreement (including opinions or other tax analysis that are provided to
such party relating to such tax treatment and tax structure); provided, however,
that no Holder (and no employee, representative, or other agent of any Holder)
shall disclose any other information that is not relevant to understanding the
tax treatment and tax structure of the transaction (including the identity of
any party and any information that could lead another to determine the identity
of any party), or any other information to the extent that such disclosure could
result in a violation of any federal, state securities law.
(r) In the case of any Exchange Offer Registration
Statement, the Company and the Guarantors shall:
(i) make reasonably available for inspection by such
Initial Purchaser, and any attorney, accountant or other agent
retained by such Initial Purchaser, all relevant financial and
other records, pertinent corporate documents and properties of
the Company, the Guarantors and their subsidiaries; provided,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties referred
to herein by the counsel designated by on and behalf of such
other parties as described in Section 6 hereof;
(ii) cause the Company and the Guarantors' officers,
directors and employees to supply all relevant information
reasonably requested by such Initial Purchaser or any such
attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due
diligence examinations; provided, however, that any
information that is designated in writing by the Company or
any Guarantor, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by
such Initial Purchaser or any such attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, or (other than as a
result of a breach of such confidentiality provision) such
information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
14
(iii) make such representations and warranties to
such Initial Purchaser, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company or
any Guarantor and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to such Initial Purchaser and its counsel,
addressed to such Initial Purchaser, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
requested by such Initial Purchaser or its counsel, if any;
(v) obtain "cold comfort" letters and updates
thereof 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 such
Initial Purchaser, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if
requested by such Initial Purchaser or its counsel in lieu of
a "cold comfort" letter, an agreed-upon procedures letter
under Statement on Auditing Standards No. 35, covering matters
requested by such Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by such Initial Purchaser or its
counsel, including those to evidence compliance with Section
5(k) and with conditions customarily contained in underwriting
agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement. Notwithstanding the proviso to clause (ii) of this
Section, the Holders (and each employee, representative, or other agent of the
Holders) may disclose to any and all persons, without limitation of any kind,
the tax treatment and any facts that may be relevant to the tax structure of the
matters covered by and relating to this Agreement (including opinions or other
tax analysis that are provided to such party relating to such tax treatment and
tax structure); provided, however, that no Holder (and no employee,
representative, or other agent of any Holder) shall disclose any other
information that is not relevant to understanding the tax treatment and tax
structure of the transaction (including the identity of any party and any
information that could lead another to determine the identity of any party), or
any other information to the extent that such disclosure could result in a
violation of any federal, state securities law.
(s) If a Registered Exchange Offer is to be consummated,
upon delivery of the Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the New
Securities, the Company shall xxxx, or caused
15
to be marked, on the Securities so exchanged that such Securities are
being canceled in exchange for the New Securities. In no event shall
the Securities be marked as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their respective
commercially reasonable best efforts (i) if the Securities have been
rated prior to the initial sale of such Securities, to confirm such
ratings will apply to the Securities or the New Securities, as the case
may be, covered by a Registration Statement; or (ii) if the Securities
were not previously rated, to cause the Securities or the New
Securities covered by a Registration Statement to be rated with at
least one nationally recognized statistical rating agency, if so
requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the National Association
of Securities Dealers, Inc.) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company and the
Guarantors shall assist such Broker-Dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in
such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 7 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
(v) The Company and the Guarantors shall use their
respective commercially reasonable best efforts to take all other steps
necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
(w) Notwithstanding the foregoing, during any 365-day
period, the Company may suspend the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement for up to 2
periods (each a "Suspension Period") of up to 45 consecutive days
(except for the consecutive 45-day period immediately prior to maturity
of the Securities), but no more than an aggregate of 75 days during any
365-day
16
period, if there is a possible acquisition or business combination or
other transaction, business development or event involving the Company
that may require disclosure in the Exchange Offer Registration
Statement or the Shelf Registration Statement and the Company
determines in the exercise of its reasonable judgment that such
disclosure is not in the best interests of the Company and its
stockholders or obtaining any financial statements relating to an
acquisition or business combination required to be included in the
Exchange Offer Registration Statement or the Shelf Registration
Statement would be impracticable. In such a case, the Company shall
promptly notify you, the Holders of Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to the
Company and the Guarantors a telephone or facsimile number and address
for notices of the suspension of the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
the case may be, provided that such notice shall not require the
Company to disclose the possible acquisition or business combination or
other transaction, business development or event if the Company
determines in good faith that such acquisition or business combination
or other transaction, business development or event should remain
confidential. Special Interest, if applicable, shall continue to accrue
and be payable pursuant to Section 4 hereof during any Suspension
Period. Upon the abandonment, consummation, or termination of the
possible acquisition or business combination or other transaction,
business development or event or the availability of the required
financial statements with respect to a possible acquisition or business
combination, the suspension of the use of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, pursuant to this paragraph shall cease and the Company shall
promptly notify you, the Holders of Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to the
Company and the Guarantors a telephone or facsimile number and address
for notices that the use of the prospectus contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
the case may be, as amended or supplemented, as applicable, may resume.
6. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its and the Guarantors
obligations under Sections 2, 3 and 5 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of counsel acting in connection therewith.
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or
17
several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Company and the Guarantors will not be
liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished
to the Company and the Guarantors by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company and the Guarantors may
otherwise have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to Losses
of any underwriter of any Securities or New Securities, as the case may
be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each Person who controls such
underwriter (within the meaning of the Act or the Exchange Act) on
substantially the same basis as that of the indemnification of the
Initial Purchasers and the selling Holders provided in this Section
7(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless the
Company and the Guarantors, each of their directors, each of their
officers who sign such Registration Statement and each Person who
controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each such Holder, but
only with reference to written information relating to such Holder
furnished to the Company or the Guarantors by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
18
results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party shall have a joint and several obligation to
contribute to the amount paid or payable by such indemnified party as a
result of the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement
which resulted in such Losses; provided, however, that in no case shall
any Initial Purchaser of any Security or New Security be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into such
New Security, as contemplated in the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such
underwriter under the Registration Statement which resulted in such
Losses, nor shall any Holder (other
19
than the Initial Purchasers) be responsible for any amount by which the
net proceeds received from the sale of such Security by such Holder
exceeds the amount of damages for which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the sum of
(x) the total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum and
(y) the total amount of additional interest which the Company was not
required to pay as a result of registering the securities covered by
the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions as reflected in the Purchase
Agreement, and benefits received by any other Holders shall be deemed
to be equal to the proceeds received from the sale of the Securities or
New Securities, as applicable. Benefits received by any underwriter
shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth in the Prospectus forming a part of the
Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to, among other things, whether any
alleged untrue statement or omission relates to information provided by
the indemnifying party, on the one hand, or by the indemnified party,
on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not
be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each
Person who controls a Holder within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and
each Person who controls the Company or any of the Guarantors within
the meaning of either the Act or the Exchange Act, each officer of the
Company or any of the Guarantors who shall have signed the Registration
Statement and each director of the Company or any of the Guarantors
shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full
force and effect, regardless of any investigation made by or on behalf
of any Holder or the Company and the Guarantors or any of the officers,
directors or controlling Persons referred to in this Section hereof,
and will survive the sale by a Holder of securities covered by a
Registration Statement.
20
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the
case may be, covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders and shall be reasonably acceptable to
the Company.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless such
Person (i) agrees to sell such Person's Securities or New Securities,
as the case may be, on the basis reasonably provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements.
9. No Inconsistent Agreements. The Company and the Guarantors
have not, as of the date hereof, entered into, nor shall they, on or after the
date hereof, enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
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 the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities); provided
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except for the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, 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 the Holders
representing a majority of the aggregate principal amount of the Securities or
the New Securities, as the case may be, being sold rather than registered under
such Registration Statement, voting together as a single class.
11. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by
such holder to the Company in accordance with the provisions of this
Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
21
(c) if to the Company or the Guarantors, initially at its
respective address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, the Company or the Guarantors by
notice to the other parties may designate additional or different addresses for
subsequent notices or communications.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. Counterparts. This agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
14. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
22
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
Issuer:
WARNACO INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
Guarantors:
THE WARNACO GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
000 XXXXXX XXXXXX INC.
A.B.S. CLOTHING COLLECTION, INC.
ABBEVILLE MANUFACTURING COMPANY
AUTHENTIC FITNESS CORPORATION
AUTHENTIC FITNESS ON-LINE, INC.
AUTHENTIC FITNESS PRODUCTS INC.
AUTHENTIC FITNESS RETAIL INC.
CCC ACQUISITION CORP.
X.X. XXXXXXXX COMPANY
XXXXXX XXXXX JEANSWEAR COMPANY
CKJ HOLDINGS, INC.
DESIGNER HOLDINGS LTD.
XXXXXXX STREET, INC.
JEANSWEAR HOLDINGS, INC.
KAI JAY MANUFACTURING COMPANY
MYRTLE AVENUE, INC.
OUTLET HOLDINGS, INC.
OUTLET STORES, INC.
PENHALIGON'S BY REQUEST, INC.
RIO SPORTSWEAR, INC.
UBERTECH PRODUCTS, INC.
WARNACO INTERNATIONAL, L.L.C.
WARNACO MEN'S SPORTSWEAR INC.
WARNACO PUERTO RICO, INC.
WARNACO SOURCING INC.
WARNACO U.S., INC.
WARNER'S DE COSTA RICA INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. XxXxxxx
--------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Sell
--------------------------
Name: Xxxx X. Sell
Title: Vice President
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business 180
days after the Expiration Date (or such shorter period during which
Participating Broker-Dealers are required by law to deliver such prospectus), it
will make this Prospectus available to any Broker-Dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business 180 days after the Expiration Date (or such shorter period
during which Participating Broker-Dealers are required by law to deliver such
prospectus), they will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until __________, 200__, all dealers effecting transactions in the New
Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by Broker-Dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the
Company and the Guarantors will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
