Exhibit 4.2
RITE AID CORPORATION
$467,500,000 10.50% Senior Secured Notes due 2002
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 14, 0000
Xxxxx Xxxxxx Bank and Trust Company
and the Holders of the 10.50% Senior
Secured Notes due 2002
c/o State Street Bank and
Trust Company
Corporate Trust
Xxxxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Rite Aid Corporation, a Delaware corporation (the "Company"),
proposes to issue to (a) certain eligible noteholders (the "Qualified
Offerees") that have validly tendered either 5.50% Notes due 2000 or 6.70%
Notes due 2002 in accordance with the terms and conditions of the exchange
offer (the "Exchange Offer") set forth in the Exchange Offer Circular dated
April 24, 2000 (the "Circular") and (b) Fiona One Corp., a wholly-owned
subsidiary of the Company (the "SPV"), in accordance with the Forward
Commitment Agreement, dated as of June 14, 2000 (the "Forward Commitment
Agreement"), among the Company, the SPV, Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB")
and X.X. Xxxxxx Securities Inc. ("X. X. Xxxxxx", and together with SSB, the
"Purchasers"), $467,500,000 aggregate principal amount of its 10.50% Senior
Secured Notes due 2002 (the "Securities"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Circular.
As an inducement to the Dealer Managers to enter into the
Dealer Manager Agreement, dated April 24, 2000, and as satisfaction of a
condition to the obligations of the Dealer Managers thereunder, as an
inducement to the Purchasers to enter into the Forward Commitment
Agreement, and as satisfaction of the conditions thereunder, and as an
inducement to the Qualified Offerees to tender the Existing Notes, the
Company and each of the subsidiaries of the Company listed on the signature
pages hereto (the "Subsidiary Guarantors") agrees, jointly and severally,
with the Qualified Offerees that have validly tendered the Existing Notes
and the SPV, for the benefit of the Purchasers, the Dealer Managers and the
holders of the Securities (including the SPV, the Purchasers and the
Purchasers' respective assignees and transferees) and the Exchange
Securities (as defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Company and the Subsidiary
Guarantors shall (i) prepare and, not later than the date that is one year
after the Expiration Date (the date of such filing being referred to herein
as the "Filing Date"), file with the Commission a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under
the Securities Act with respect to a proposed offer to the Holders of the
Securities (the "Registered Exchange Offer") to issue and deliver to such
Holders, in exchange for the Securities (including, for the avoidance of
doubt, the Securities issued in accordance with the Forward Commitment
Agreement), a like aggregate principal amount of debt securities of the
Company (the "Exchange Securities") that are identical in all material
respects to the Securities, except for the transfer restrictions relating
to the Securities, (ii) use their best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act no
later than 180 days after the Filing Date, (iii) as soon as practicable
after the effectiveness of the Exchange Offer Registration Statement,
initiate the Registered Exchange Offer as set forth in the following
paragraph and (iv) keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders in
accordance with the following paragraph (such period being called the
"Exchange Offer Registration Period"). The Exchange Securities will be
issued under the same indenture as the Securities (the "Indenture") among
the Company, the Subsidiary Guarantors and the Trustee or such other bank
or trust company that is reasonably satisfactory to the Dealer Managers, as
trustee (the "Trustee"), as the Securities, with such modifications as may
be appropriate to account for the registration of the Exchange Securities
under the Securities Act.
As soon as practicable after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities (including, for the
avoidance of doubt, the Securities issued in accordance with the Forward
Commitment Agreement) for Exchange Securities (assuming that such Holder
(a) is not an affiliate of the Company or an Exchanging Dealer (as defined
herein) not complying with the requirements of the next sentence, (b) is
not holding Securities that have, or that are reasonably likely to have,
the status of an unsold allotment in an initial distribution, (c) acquires
the Exchange Securities in the ordinary course of such Holder's business
and (d) has no arrangements or understandings with any person to
participate, and is not participating, in the distribution of the Exchange
Securities) and to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States. The Company, the Holders and each Exchanging
Dealer (as defined below) acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities
Act, each Holder that is a broker-dealer electing to exchange Securities,
acquired for its own account as a result of market-making activities or
other trading activities, for Exchange Securities (an "Exchanging Dealer"),
is required, in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange
Offer, to deliver a prospectus containing substantially the information set
forth (i) in Annex A hereto on the cover of such prospectus, (ii) in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section of such prospectus and (iii) in Annex C hereto in
the "Plan of Distribution" section of such prospectus.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder of Securities and the Purchasers a copy
of the prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders of
Securities and the Purchasers;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the end of the Registered Exchange Offer, as set forth in the
materials originally mailed to Holders of Securities or otherwise extended
by the Company;
(e) prior to effectiveness of the Exchange Offer Registration
Statement, if requested or required by the Securities and Exchange
Commission (the "Commission"), use its best efforts to provide a
supplemental letter to the Commission (A) stating that the Company is
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 has not entered into any
arrangement or understanding with any person to distribute the Exchange
Securities to be received in the Registered Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the Exchange Securities in the
ordinary course of business and has no arrangement or understanding with
any person to participate in the distribution of the Exchange Securities;
and
(f) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(a) accept for exchange all Securities (including, for the
avoidance of doubt, Securities issued in accordance with the Forward
Commitment Agreement) tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(c) cause the Trustee promptly to authenticate and deliver to
each Holder, Exchange Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement
the prospectus contained therein in order to permit such prospectus to be
used by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with
such requirements in order to resell the Exchange Securities; provided that
(i) in the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer, such period shall be the
earlier of one year from the close of the Registered Exchange Offer and the
date on which all Exchanging Dealers have sold all Exchange Securities held
by them and (ii) the Company shall make such prospectus and any amendment
or supplement thereto available to any broker-dealer for use in connection
with any resale of any Exchange Securities for a period of not less than 90
days after the consummation of the Registered Exchange Offer.
The Indenture shall provide that the Securities and the
Exchange Securities shall vote and consent together on all matters as to
which the Indenture provides for voting and consent as one class and that
neither the Securities nor the Exchange Securities will have the right to
vote or consent as a separate class on any matter.
Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date
on which interest was paid on the Securities surrendered in exchange
therefor or, if no interest has been paid on the Securities, from the date
of the closing of the Exchange Offer.
Each Holder hereby acknowledges and agrees that any such Holder
using the Registered Exchange Offer to participate in a distribution of the
Exchange Securities (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 Securities Act in connection with any secondary resale
transaction which 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 Securities Act if the
resales are of Exchange Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of its
affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Company that at the
time of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course
of business, (ii) such Holder will have no arrangements or understanding
with any person to participate and is not participating in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act and (iii) such Holder is not an affiliate of the Company or,
if it is such an affiliate (as defined in Section 10(e)), such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer
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 and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not, as of the consummation of the Registered Exchange
Offer, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is
not permitted to effect the Registered Exchange Offer as contemplated by
Section 1 hereof, or (ii) the Registered Exchange Offer is not completed
within 220 days after the Filing Date, or (iii) a Holder of Securities
(including, for the avoidance of doubt, Securities issued in accordance
with the Forward Commitment Agreement) notifies the Company following the
completion of the Registered Exchange Offer that the Securities held by
such Holder are not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer, or (iv) certain Holders of the Securities
(including, for the avoidance of doubt, Securities issued in accordance
with the Forward Commitment Agreement) are prohibited by law or the policy
of the Commission from participating in the Registered Exchange Offer or
the Exchange Securities may not be freely transferable by such Holders,
then the following provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall promptly
file (but in no event more than 30 days after so required or requested
pursuant to this Section 2) with the Commission, and thereafter shall use
their best efforts to cause to be declared effective, a shelf registration
statement on an appropriate form under the Securities Act relating to the
offer and sale of the Transfer Restricted Securities (as defined below) by
the Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement").
(b) The Company and the Subsidiary Guarantors shall keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period ending on the earlier of (i) two years
from the effective date of the Shelf Registration Statement or such shorter
period that will terminate when all the Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold pursuant thereto
and (ii) the date on which the Securities become eligible for resale
without volume restrictions pursuant to Rule 144 under the Securities Act
(in any such case, such period being called the "Shelf Registration
Period"). The Company and the Subsidiary Guarantors shall be deemed not to
have complied with this paragraph (b) if they voluntarily take any action
that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such Transfer Restricted
Securities during that period, unless such action is required by applicable
law.
(c) Notwithstanding any other provisions hereof, the Company
and the Subsidiary Guarantors shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part thereof
and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder,
(ii) any Shelf Registration Statement and any amendment thereto (in either
case, other than with respect to information included therein in reliance
upon or in conformity with written information furnished to the Company by
or on behalf of any Holder specifically for use therein (the "Holders'
Information")) does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders'
Information), does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. Additional Interest. (a) If (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to one
year after the Expiration Date, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not
declared effective within 180 days after the Filing Date (or in the case of
a Shelf Registration, after the day the filing is required by Section
2(a)), (iii) the Registered Exchange Offer is not consummated on or prior
to 40 days after the Exchange Offer Registration Statement is declared
effective, (iv) if the Company is required to file the Shelf Registration
Statement in accordance with Section 2, the Company does not so file the
Shelf Registration Statement on or prior to the 30th day after the
Company's obligation to file such Shelf Registration Statement arises, or
(v) the applicable Registration Statement is filed and declared effective
but shall thereafter cease to be effective (at any time that the Company is
obligated to maintain the effectiveness thereof) without being again
effective within 30 days or being succeeded within 30 days by an additional
Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (v), a "Registration Default"), the
Company shall be obligated to pay additional interest ("Additional
Interest") to each Holder of Transfer Restricted Securities, during the
period of one or more such Registration Defaults, at a rate of 0.25% per
annum on the applicable principal amount of Transfer Restricted Securities
held by such Holder for the first 90-day period immediately following the
occurrence of a Registration Default, and such rate will increase by an
additional 0.25% with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum additional rate of
1.00% per annum. Such obligation to pay Additional Interest shall survive
until (i) the applicable Registration Statement is filed, (ii) the Exchange
Offer Registration Statement is declared effective and the Registered
Exchange Offer is consummated with respect to all properly tendered
Securities, (iii) the Shelf Registration Statement is declared effective or
(iv) the Shelf Registration Statement again becomes effective (or is
superseded by another effective Shelf Registration Statement), as the case
may be. Following the cure of all Registration Defaults, the accrual of
Additional Interest will cease.
As used herein, the term "Transfer Restricted Securities" means
(i) each Security (including, for the avoidance of doubt, each Security
issued in accordance with the Forward Commitment Agreement) until the date on
which such Security has been exchanged for a freely transferable Exchange
Security in the Registered Exchange Offer, (ii) each Security (including,
for the avoidance of doubt, each Security issued in accordance with the
Forward Commitment Agreement) 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
(including, for the avoidance of doubt, each Security issued in accordance
with the Forward Commitment Agreement) until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Company
shall not be required to pay Additional Interest to a Holder of Transfer
Restricted Securities if such Holder failed to comply with its obligations
to make the representations set forth in the second to last paragraph of
Section 1 or failed to provide the information required to be provided by
it, if any, pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the paying agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company shall pay the Additional Interest due on
the Transfer Restricted Securities by depositing with the paying agent
(which may not be the Company for these purposes), in trust, for the
benefit of the Holders thereof, prior to 10:00 a.m., New York City time, on
the next applicable interest payment date specified by the Indenture and
the Securities, sums sufficient to pay the Additional Interest then due.
The Additional Interest due shall be payable on each applicable interest
payment date specified by the Indenture and the Securities to the record
holder entitled to receive the interest payment to be made on such date.
Each obligation to pay Additional Interest shall be deemed to accrue from
and including the date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole damages that will be suffered by Holders of
Transfer Restricted Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be
filed, (ii) the Shelf Registration Statement to remain effective or (iii)
the Exchange Offer Registration Statement to be declared effective and the
Registered Exchange Offer to be consummated, in each case to the extent
required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Purchaser, each
Dealer Manager and each Holder, prior to the filing thereof with the
Commission, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and shall
use its reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as either Purchaser, either Dealer
Manager or any Holder may reasonably propose; (ii) include the information
set forth (A) in Annex A hereto on the cover of such prospectus, (B) in
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose
of the Exchange Offer" section of such prospectus and (C) in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a part of
the Exchange Offer Registration Statement, and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested by either Purchaser,
either Dealer Manager or any Holder, include the information required by
Items 507 or 508 of Regulation S-K, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise each Purchaser, each Dealer
Manager, each Exchanging Dealer and the Holders (if applicable) and, if
requested by any such person, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included therein
or for additional information;
(iii) if known by the Company, of the issuance by the Commission
of any stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities or the
Exchange Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that 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 not misleading.
(c) The Company and the Subsidiary Guarantors shall make every
reasonable effort to obtain the withdrawal at the earliest possible time of
any order suspending the effectiveness of any Registration Statement.
(d) The Company shall furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one conformed copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and, if any such Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period,
promptly deliver to each Purchaser, each Dealer Manager and each Holder of
Transfer Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Purchaser, such
Dealer Manager or Holder may reasonably request; and the Company and the
Subsidiary Guarantors consent to the use of such prospectus or any
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offer and sale of the Transfer
Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
(f) The Company shall furnish to each Purchaser, each Dealer
Manager, each Exchanging Dealer, and to any Holder who so requests, without
charge, at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if either Purchaser, either Dealer Manager,
any Exchanging Dealer or any such Holder so requests in writing, all
exhibits thereto (including those, if any, incorporated by reference).
(g) The Company shall, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly deliver to
each Purchaser, each Dealer Manager, each Exchanging Dealer and such other
persons that are required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement or the Shelf
Registration Statement and any amendment or supplement thereto as such
Purchaser, such Dealer Manager, Exchanging Dealer or other persons may
reasonably request; and the Company and the Subsidiary Guarantors consent
to the use of such prospectus or any amendment or supplement thereto by any
such Purchaser, such Dealer Manager, Exchanging Dealer or other persons, as
applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Company and the Subsidiary Guarantors shall use their best efforts to
register or qualify, or cooperate with the Holders of Securities
(including, for the avoidance of doubt, Securities issued in accordance
with the Forward Commitment Agreement), Exchange Securities included
therein and their respective counsel in connection with the registration or
qualification of, such Securities or Exchange Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities or Exchange Securities covered by such
Registration Statement; provided that the Company and the Subsidiary
Guarantors shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of Securities
(including, for the avoidance of doubt, Securities issued in accordance
with the Forward Commitment Agreement) or Exchange Securities to facilitate
the timely preparation and delivery of certificates representing
Securities, Exchange Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing
prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company is required to maintain an
effective Registration Statement, the Company and the Subsidiary Guarantors
shall promptly prepare and file with the Commission a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities (including, for the avoidance of
doubt, Securities issued in accordance with the Forward Commitment
Agreement) or Exchange Securities from a Holder, the prospectus will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Company shall provide a CUSIP number for the
Securities and the Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Securities or the
Exchange Securities as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Company and the Subsidiary Guarantors shall comply with
all applicable rules and regulations of the Commission and shall make
generally available to the Company's security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earning statement satisfying the provisions of Section 11(a)
of the Securities Act; provided that in no event shall such earning
statement be delivered later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the applicable Registration Statement, which statement
shall cover such 12-month period.
(m) The Company and the Subsidiary Guarantors shall cause the
Indenture, to be qualified under the Trust Indenture Act as required by
applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may
from time to time reasonably require for inclusion in such Shelf
Registration Statement, and the Company may exclude from such registration
the Transfer Restricted Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto agrees
by acquisition of such Transfer Restricted Securities that, upon receipt of
any notice from the Company pursuant to Section 4(b)(ii) through (v), such
Holder will discontinue disposition of such Transfer Restricted Securities
until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall give any notice under Section 4(b)(ii)
through (v) during the period that the Company is required to maintain an
effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such
period from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies
of the supplemental or amended prospectus contemplated by Section 4(j) (if
an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company
and the Subsidiary Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority in aggregate
principal amount of the Securities or Exchange Securities being sold or the
managing underwriters, if any, shall reasonably request in order to
facilitate any disposition of Securities or Exchange Securities pursuant to
such Shelf Registration Statement.
(q) In the case of any Shelf Registration Statement, the
Company and the Subsidiary Guarantors, as applicable, shall:
(i) make reasonably available for inspection by the Holders of,
representatives and counsel to, a majority in aggregate principal
amount of the 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
such Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company, 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 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
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings;
(iv) if requested by Holders of a majority in aggregate
principal amount of the Securities to be registered thereunder or by
any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, to use its reasonable best efforts to
have its counsel issue legal opinions and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the 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;
(v) if requested by Holders of a majority in aggregate
principal amount of the Securities to be registered thereunder or by
any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, to use its reasonable best efforts to
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, in each case, financial statements and financial data are,
or are required to be, included in the Shelf Registration Statement),
addressed to each selling Holder of 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
(vi) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being
sold and the underwriters, if any, and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company and the Subsidiary Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
subsection shall be performed at (A) the effectiveness of such Shelf
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.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities (including, for the avoidance of doubt,
Securities issued in accordance with the Forward Commitment Agreement) by
Holders to the Company (or to such other person as directed by the Company)
in exchange for the Exchange Securities, the Company shall xxxx, or cause
to be marked, on the Securities so exchanged that such Securities are being
canceled in exchange for the Exchange Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(s) The Company will use its reasonable best efforts to cause
the Securities (including, for the avoidance of doubt, Securities issued in
accordance with the Forward Commitment Agreement) covered by a Registration
Statement to be rated with at least one nationally recognized statistical
rating agency, if so requested by Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being sold
with respect to the related Registration Statement or by any underwriters.
(t) In the event that any broker-dealer shall underwrite any
Securities (including, for the avoidance of doubt, Securities issued in
accordance with the Forward Commitment Agreement) 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, 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
6 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.
5. Registration Expenses. The Company and the Subsidiary
Guarantors shall bear all expenses incurred in connection with the
performance of its obligations under Sections 1, 2, 3 and 4 and, in the
case of a Shelf Registration Statement, the Company and the Subsidiary
Guarantors shall reimburse the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to any local counsel)
chosen by the Holders of a majority in aggregate principal amount of the
Securities and the Exchange Securities to be sold pursuant to each
Registration Statement (the "Special Counsel") acting for the Holders and
the Purchasers in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an
Exchange Offer Registration Statement by an Exchanging Dealer, the Company
and the Subsidiary Guarantors shall, jointly and severally, indemnify and
hold harmless each Purchaser, each Dealer Manager and each Holder
(including, without limitation, any such Exchanging Dealer), their
affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such
Purchaser, such Dealer Manager or Holder, as applicable, within the meaning
of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 6 and Section 7 as a Holder, Purchaser or Dealer
Manager, as the case may be) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating
to purchases and sales of Securities or Exchange Securities), to which that
Holder, Purchaser or Dealer Manager, as the case may be, may become
subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming a part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and shall reimburse each Holder, each
Purchaser and each Dealer Manager, as the case may be, promptly upon demand
for any legal or other expenses reasonably incurred by that Holder,
Purchaser or Dealer Manager, as the case may be, in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company and the Subsidiary Guarantors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any Holders' Information; and provided
further, however, that with respect to any such untrue statement in or
omission from any related preliminary prospectus, the indemnity agreement
contained in this Section 6(a) shall not inure to the benefit of any Holder
from whom the person asserting any such loss, claim, damage, liability or
action received Securities or Exchange Securities to the extent that such
loss, claim, damage, liability or action of or with respect to such Holder
results from the fact that both (A) a copy of the final prospectus was not
sent or given to such person at or prior to the written confirmation of the
sale of such Securities or Exchange Securities to such person and (B) the
untrue statement in or omission from the related preliminary prospectus was
corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Company
with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
shall indemnify and hold harmless the Company, the Subsidiary Guarantors,
their affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the
Company or any such Subsidiary Guarantor, as the case may be, within the
meaning of the Securities Act or the Exchange Act (collectively referred to
for purposes of this Section 6(b) and Section 7 as the Company), from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any such Registration Statement
or any prospectus forming a part thereof or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with any Holders' Information
furnished to the Company or any Subsidiary Guarantor by such Holder, and
shall reimburse the Company or such Subsidiary Guarantor, as the case may
be, for any legal or other expenses reasonably incurred by the Company or
such Subsidiary Guarantor, as the case may be, in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Securities or Exchange Securities pursuant to such Shelf Registration
Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 6(a) or 6(b), notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure;
and provided further, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the
right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based upon
advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action,
in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability or claims that were raised or could have been raised by such
plaintiff in such proceeding.
7. Contribution. If the indemnification provided for in Section
6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as shall
be appropriate to reflect the relative benefits received by the Company and
the Subsidiary Guarantors from the offering and sale of the Securities and
the Exchange Offer, on the one hand, and either a Holder with respect to
the sale by such Holder of Securities or Exchange Securities, a Purchaser
with respect to the cash consideration received by such Purchaser under the
Forward Commitment Agreement or a Dealer Manager with respect to the fees
received under the Dealer Manager Agreement, as the case may be, on the
other, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Subsidiary Guarantors on the
one hand and such Holder, such Purchaser or such Dealer Manager, as the
case may be, on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Subsidiary Guarantors on
the one hand and a Holder, a Purchaser or a Dealer Manager, as the case may
be, on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the aggregate principal amount of
Existing Notes received by the Company in exchange for the Securities, on
the one hand, bear to the total proceeds received by such Holder with
respect to its sale of Securities or Exchange Securities, the total cash
consideration received by such Purchaser under the Forward Commitment
Agreement or the total fees received by such Dealer Manager under the
Dealer Manager Agreement, as the case may be, on the other. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company and the
Subsidiary Guarantors or information supplied by the Company and the
Subsidiary Guarantors on the one hand or to any Holders' Information
supplied by such Holder on the other, 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 hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7
were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7 shall be deemed to include,
for purposes of this Section 7, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 7, an indemnifying party that is a Holder of
Securities or Exchange Securities, a Purchaser or a Dealer Manager shall
not be required to contribute any amount in excess of the amount by which
(A) with respect to any Holder, the total price at which the Securities or
Exchange Securities sold by such indemnifying party to any purchaser, (B)
with respect to a Purchaser, the total consideration received by such
Purchaser pursuant to the Forward Commitment Agreement or (C) with respect
to a Dealer Manager, the total fees received by such Dealer Manager
pursuant to the Dealer Manager Agreement, as the case may be, exceeds the
amount of any damages which such indemnifying party has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
8. Rules 144 and 144A. So long as Transfer Restricted Securities
remain outstanding, after July 11, 2000, the Company shall use its
reasonable best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at
any time the Company is not required to file such reports, it will, upon
the written request of any Holder of Transfer Restricted Securities, make
publicly available other information so long as necessary to permit sales
of such Holder's securities pursuant to Rules 144 and 144A. So long as
Transfer Restricted Securities remain outstanding, the Company covenants
that after July 11, 2000 it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including,
without limitation, the requirements of Rule 144A(d)(4)). So long as
Transfer Restricted Securities remain outstanding, upon the written request
of any Holder of Transfer Restricted Securities, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which shall not be unreasonably withheld or
delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities 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.
10. Miscellaneous. (a) Amendments and Waivers. The provisions
of this Agreement may not be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Securities are being sold
pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
10(b), which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar under the Indenture;
(2) if to a Purchaser or Dealer Manager, initially at its address
set forth in the Dealer Manager Agreement; and
(3) if to the Company or any Subsidiary Guarantor, initially at
the address of the Company set forth in the Indenture.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one
business day after being delivered to a next-day air courier; five business
days after being deposited in the mail; and when receipt is acknowledged by
the recipient's telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding
upon the Company and the Subsidiary Guarantors and their successors and
assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier)
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading, (b) the term "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act and (c) except where otherwise
expressly provided, the term "affiliate" has the meaning set forth in Rule
405 under the Securities Act.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Company, the
Subsidiary Guarantors or by any Holder of any of their obligations under
this Agreement, each Holder, the Company or each Subsidiary Guarantor, as
the case may be, in addition to being entitled to exercise all rights
granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company or such Subsidiary Guarantors, as the
case may be, of its obligations under Sections 1 or 2 hereof for which
Additional Interest has been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company, each Subsidiary Guarantor and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason
of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(i) No Inconsistent Agreements. The Company and each of the
Subsidiary Guarantors represents, warrants and agrees that (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into
any agreement that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof, (ii)
it has not previously entered into any agreement granting any registration
rights with respect to any of its debt securities to any person, except for
such agreements where the Company has complied and is in compliance with
its registration obligations to date, and (iii) without limiting the
generality of the foregoing, so long as Transfer Restricted Securities
remain outstanding, without the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities, it shall not grant to any person the
right to request the Company to register any debt securities of the Company
under the Securities Act unless the rights so granted are not in conflict
or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders of Transfer Restricted
Securities in such capacity) shall have the right to include any securities
of the Company in any Shelf Registration or Registered Exchange Offer other
than Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Holders.
Very truly yours,
RITE AID CORPORATION,
By
------------------------------------
Name:
Title:
THRIFY PAYLESS, INC., as a
Subsidiary Guarantor,
By
------------------------------------
Name:
Title:
PCS HEALTH SYSTEMS, INC., as a
Subsidiary Guarantor,
By
------------------------------------
Name:
Title:
EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON SCHEDULE
A HERETO,
By
------------------------------------
Name:
Title: Authorized
Signatory
Accepted:
HOLDERS OF THE SECURITIES
By: State Street Bank and Trust
Company, on behalf of the
Holders in its capacity
as Trustee,
By
-------------------------------
Name:
Title:
SCHEDULE A
Subsidiary Guarantors
---------------------
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
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 Exchange 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, for a period of 180 days
after the Expiration Date (as defined herein), 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 Exchange 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 Exchange Securities See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
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
Exchange Securities received in exchange for Securities where such
Securities were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of 180 days
after the Expiration Date, it 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 Exchange Securities may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered 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 Exchange 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 at 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 or the purchasers of any such
Exchange Securities. Any broker- dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Registered
Exchange Offer and any broker or dealer that participates in a distribution
of such Exchange Securities may be deemed to be an "underwriter" within the
meaning of the Securities Act and any profit on any such resale of Exchange
Securities and any commission 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
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 Registered Exchange Offer (including the expenses
of one counsel for the Holders of the Securities) other than commissions or
concessions of any broker-dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
ANNEX D
o 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:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection
with any resale of such Exchange 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.
