REGISTRATION RIGHTS AGREEMENT Dated as of July 7, 2009 by and among Real Mex Restaurants, Inc. Acapulco Restaurants, Inc. El Torito Restaurants, Inc. CKR Acquisition Corp. Chevys Restaurants, LLC El Torito Franchising Company Acapulco Restaurant of...
Exhibit 10.1
Dated as of July 7, 2009
by and among
Real Mex Restaurants, Inc.
Acapulco Restaurants, Inc.
El Torito Restaurants, Inc.
CKR Acquisition Corp.
Chevys Restaurants, LLC
El Torito Franchising Company
Acapulco Restaurant of Ventura, Inc.
Acapulco Restaurant of Westwood, Inc.
Acapulco Restaurants of Xxxxxx, Inc.
Xxxxxx Pacific
Acapulco Restaurant of Xxxxxx Valley, Inc.
El Paso Cantina, Inc.
Real Mex Foods, Inc.
TARV, Inc.
ALA Design, Inc.
Acapulco Xxxx Corp.
RM Restaurant Holding Corp.
Acapulco Restaurants, Inc.
El Torito Restaurants, Inc.
CKR Acquisition Corp.
Chevys Restaurants, LLC
El Torito Franchising Company
Acapulco Restaurant of Ventura, Inc.
Acapulco Restaurant of Westwood, Inc.
Acapulco Restaurants of Xxxxxx, Inc.
Xxxxxx Pacific
Acapulco Restaurant of Xxxxxx Valley, Inc.
El Paso Cantina, Inc.
Real Mex Foods, Inc.
TARV, Inc.
ALA Design, Inc.
Acapulco Xxxx Corp.
RM Restaurant Holding Corp.
and
Xxxxxxxxx & Company, Inc.
This Registration Rights Agreement (this “Agreement”) is made and entered into as of July 7,
2009, by and among Real Mex Restaurants, Inc., a Delaware corporation (the “Company”), Acapulco
Restaurants, Inc., a Delaware corporation, El Torito Restaurants, Inc., a Delaware corporation, CKR
Acquisition Corp., a Delaware corporation, Chevys Restaurants, LLC, a Delaware limited liability
company, El Torito Franchising Company, a Delaware corporation, Acapulco Restaurant of Ventura,
Inc., a California corporation, Acapulco Restaurant of Westwood, Inc., a California corporation,
Acapulco Restaurant of Xxxxxx, Inc., a California corporation, Xxxxxx Pacific, a California
corporation, Acapulco Restaurant of Xxxxxx Valley, Inc., a California corporation, El Paso Cantina,
Inc., a California corporation, Real Mex Foods, Inc., a California corporation, TARV, Inc., a
California corporation, ALA Design, Inc., a California corporation, Acapulco Xxxx Corp., a Delaware
corporation, and RM Restaurant Holding Corp., a Delaware corporation (each a “Guarantor”, and,
collectively, the “Guarantors”), and Xxxxxxxxx & Company, Inc. (the “Initial Purchaser”), who has
agreed to purchase the Company’s 14% Senior Secured Notes due 2013 (the “Series A Notes”) pursuant
to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated July 1, 2009, (the “Purchase
Agreement”), by and among the Company, the Guarantors and the Initial Purchaser. In order to
induce the Initial Purchaser to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth in Section 8 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have the meaning assigned
to them the Indenture, dated July 7, 2009, between the Company and Xxxxx Fargo Bank, National
Association, as Trustee (the “Trustee”), relating to the Series A Notes and the Series B Notes (as
defined below) (the “Indenture”).
The parties hereby agree as follows:
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day except a Saturday, Sunday or any other day on which banking
institutions in the City of New York, NY or in the city of the corporate trust office of the
Trustee, are authorized or obligated by law or regulation to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant to Section 3(b)
hereof and (c) the delivery by the Company to the Registrar under the Indenture of Series B Notes
in the same aggregate principal amount as the aggregate principal amount of Series A Notes tendered
by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: The Exchange Effectiveness Deadline or Shelf Effectiveness Deadline,
as applicable.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Effectiveness Deadline: As defined in Section 3(a) hereof.
Exchange Filing Deadline: As defined in Section 3(a) hereof.
Exchange Offer: The registration by the Company under the Act of the Series B Notes pursuant
to a Registration Statement pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Securities who are not prohibited by law or a policy of the Commission from
participating in such offer the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by
such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Filing Deadline: The Exchange Filing Deadline or Shelf Filing Deadline, as applicable.
Holders: As defined in Section 2 hereof.
Person: An individual, partnership, corporation, trust, limited liability company or
unincorporated organization, or a government or agency or political subdivision thereof or other
legal entity.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereof.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company and the Guarantors relating
to (a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Regulation S-K: Regulation S-K promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Series A Notes: As defined in the preamble hereto.
Series B Notes: The Company’s 14% Series B Senior Notes due 2013 to be issued pursuant to the
Indenture: (i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Subsequent Registration Statement: As defined in Section 6(c) hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the
date of the Indenture.
Transactions: As defined in Section 6(d) hereof.
Transfer Restricted Securities: Each (A) Series A Note, until the earliest to occur of (i)
the date on which such Series A Note is exchanged in the Exchange Offer for a Series B Note which
is entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (ii) the date on which such Series A Note has been disposed of in
accordance with a Shelf Registration Statement (and the purchasers thereof have been issued Series
B Notes), or (iii) the date on which such Series A Note is distributed to the public pursuant to
Rule 144 under the Act, (B) Series B Note held by a Broker-Dealer until the date on which such
Series B Note is disposed of by a Broker-Dealer pursuant to the “Plan of Distribution” contemplated
by the Exchange Offer Registration Statement (including the delivery of the Prospectus contained
therein) and (C) Private Series B Note.
A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities, has a beneficial interest in Transfer
Restricted Securities issued in book-entry form or has the right to acquire such Transfer
Restricted Securities, whether or not such acquisition has actually been effected and
disregarding any legal restrictions upon the exercise of such right.
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(a) Unless the Exchange Offer shall not be permitted by applicable federal law (after the
procedures set forth in Section 6(a)(i) below have been complied with), the Company and the
Guarantors shall (i) cause the Exchange Offer Registration Statement to be filed with the
Commission no later than 90 days after the Closing Date (such 90th day being the “Exchange Filing
Deadline”), (ii) use all commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but no later than 180 days after the
Closing Date (such 180th day being the “Exchange Effectiveness Deadline”), (iii) in connection with
the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement
as may be necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under
the Act and (C) cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (i) registration of the Series B Notes to be
offered in exchange for the Series A Notes that are Transfer Restricted Securities and (ii) resales
of Series B Notes by Broker-Dealers that tendered into the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of market making activities or other trading
activities (other than Series A Notes acquired directly from the Company or any of its Affiliates)
as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use all commercially reasonable efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall use all commercially
reasonable efforts to keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Series B Notes (and related
guarantees) shall be included in the Exchange Offer Registration Statement. The Company and the
Guarantors shall use all commercially reasonable efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days thereafter (such 30th day being the
“Consummation Deadline”), or such longer period as is required by federal securities laws.
(c) The Company shall include a “Plan of Distribution” section in the Prospectus contained in
the Exchange Offer Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain
all other information with respect to such sales by such Broker-Dealers
that the Commission may require in order to permit such sales pursuant thereto, but such “Plan
of Distribution” shall not name any such Broker-Dealer or disclose the amount of Transfer
Restricted Securities held by any such Broker-Dealer, except to the extent required by the
Commission. See the Shearman & Sterling no-action letter (available July 2, 1993).
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Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with
its initial sale of any Series B Notes received by such Broker-Dealer in the Exchange Offer, the
Company and Guarantors shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery requirement. To
the extent necessary to ensure that the Prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers, the Company and the
Guarantors agree to use all commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required by and subject to
the provisions of Section 6(a) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as announced from time
to time, for a period of 180 days from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than five Business Days after such request, at any time during such period.
(d) If, upon consummation of the Exchange Offer, any Holder who is not entitled to participate
in the Exchange Offer holds any Series A Notes, the Company (upon the written request from such
Holder) shall, simultaneously with the delivery of the Series B Notes pursuant to the Exchange
Offer, issue and deliver to such Holder in exchange (the “Private Exchange”) for the Series A Notes
held by such Holder, a like principal amount at maturity of debt securities of the Company,
including guarantees relating thereto (issued under the same Indenture as the Series B Notes) that
are identical in all material respects to the Series B Notes except for the existence of
restrictions on transfer thereof under the Securities Act and securities laws of the several states
of the United States (the “Private Series B Notes”). The Private Series B Notes shall bear the same
CUSIP number as the Series B Notes.
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by applicable law
(after the Company and the Guarantors have complied with the procedures set forth in Section
6(a)(i) below), (ii) subsequent to the consummation of the Private Exchange, any Holder of Private
Series B Notes so requests or (iii) if any Holder of Transfer Restricted Securities shall notify
the Company within 20 Business Days following the Consummation Deadline that (A) such Holder was
prohibited by law or Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Series A Notes acquired directly from the Company or any of its Affiliates,
then the Company and the Guarantors shall:
(x) use all commercially reasonable efforts to file, on or prior to 60 days after
the earlier of (i) the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above and (ii)
the earliest date on which the Company receives the notice specified in clause
(a)(ii) or (a)(iii) above, (such earlier date, the “Shelf Filing Deadline”), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an amendment
to the Exchange Offer Registration Statement (together with any Subsequent Shelf
Registration Statement, the “Shelf Registration Statement”)), relating to all
Transfer Restricted Securities (provided, however, that
notwithstanding this Section 4(a)(x), (A) the Company shall not be required to file
its Shelf Registration Statement prior to the Exchange Filing Deadline and (B) the
Company shall not be required to file more than one Shelf Registration Statement
pursuant to this Section 4 (other than any Subsequent Shelf Registration Statements
required under Section 6(c)(iii) hereof)), and
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(y) shall use all commercially reasonable efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after the Shelf Filing
Deadline (such 120th day the “Shelf Effectiveness Deadline”).
If, after the Company has filed an Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a) above, the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under applicable federal
law (i.e., clause (a)(i) above), then the filing of the Exchange Offer Registration Statement shall
be deemed to satisfy the requirements of clause (x) above; provided, that, in such event,
the Company shall remain obligated to file a Shelf Registration Statement under clause (x) and meet
the Shelf Effectiveness Deadline set forth in clause (y) of this Section 4(a) with respect to such
Shelf Registration Statement except that the Shelf Filing Deadline shall be 90 days after the
Company determines that the Exchange Offer is not so permitted.
To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantor(s) shall use all commercially reasonable efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections 6(b) and (c) hereof
and in conformity with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(d)) following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf Registration Statement have
been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 10 Business Days after receipt of a
request therefor, such information as the Company may reasonably request, including, without
limitation, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act, for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities
shall be entitled to liquidated damages pursuant to Section 5 hereof unless and until such Holder
shall have provided all such information. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
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The Company and the Guarantors acknowledge and agree that the Holders will suffer damages, and
that it would not be feasible to ascertain the extent of such damages with precision, if the
Company and the Guarantors fail to fulfill their respective obligations hereunder. Accordingly, in
the event of such failure, the Company and the Guarantors jointly and severally agree to pay
liquidated damages to each Holder under the circumstances and to the extent set forth below (each
of which shall be given independent effect).
If (i) any Registration Statement required by this Agreement is not filed with the Commission
on or prior to the applicable Filing Deadline, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness Deadline, (iii)
the Exchange Offer has not been Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable in connection with resales of Transfer
Restricted Securities during the period required by this Agreement without being succeeded within 2
Business Days by a post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to in clauses (i)
through (iv), a “Registration Default”), then the Company and the Guarantors hereby jointly and
severally agree to pay to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to 0.25% per annum on the outstanding principal amount of Transfer
Restricted Securities held by such Holder for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated damages shall increase by an
additional 0.25% per annum on the outstanding principal amount of Transfer Restricted Securities
with respect to each subsequent 90-day period until all Registration Defaults have been cured, up
to a maximum amount of liquidated damages of 1.0% per annum on the outstanding principal amount of
Transfer Restricted Securities; provided, that the Company and the Guarantors shall in no
event be required to pay liquidated damages for more than one Registration Default at any given
time. Notwithstanding anything to the contrary set forth herein, upon the day of (1) filing of the
Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in
the case of (i) above, (2) the effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement), in the case of (ii) above, (3) the Consummation
of the Exchange Offer, in the case of (iii) above, or (4) the filing of a post-effective amendment
to the Registration Statement or an additional Registration Statement that causes the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated damages payable with
respect to the Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or (iv),
as applicable, shall cease.
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The Company shall notify the Trustee within five Business Days after each Registration
Default. All accrued liquidated damages shall be paid to the Holders entitled thereto, in the
manner provided for the payment of interest in the Indenture, on each Interest Payment Date (as
such term is defined in the Indenture), as more fully set forth in the Indenture and the Notes.
Notwithstanding the fact that any securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company and the Guarantors to pay liquidated
damages with respect to securities shall survive until such time as such obligations with respect
to such securities shall have been satisfied in full. The liquidated damages set forth above shall
be the exclusive monetary remedy available to the Holders of Transfer Restricted Securities for
Registration Defaults.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall (x) comply with all applicable provisions of Section 6(c) below,
(y) use all commercially reasonable efforts to effect such exchange and to permit the resale of
Series B Notes by Broker-Dealers that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or methods of distribution thereof,
and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the reasonable
opinion of the Company and counsel to the Company raises a substantial question as to
whether the Exchange Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Company and the Guarantors hereby agree to pursue the
issuance of such a decision to the Commission staff level, but shall not be required to take
commercially unreasonable actions to effect a change in Commission policy. In connection
with the foregoing, the Company and the Guarantors hereby agree to take all such other
actions as may be requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
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(ii) As a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a Broker-Dealer)
shall furnish, upon the request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company and the Guarantors (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that at the time of the Consummation (A) it is not an Affiliate of the Company, (B)
it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of the
Series B Notes to be issued in the Exchange Offer and (C) it is acquiring the Series B Notes
in its ordinary course of business. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a distribution of the Series B
Notes shall acknowledge and agree that, if the resales are of Series B Notes obtained by
such Holder in exchange for Series A Notes acquired directly from the Company or an
Affiliate thereof, it (1) could not, under Commission policy as in effect on the date of
this Agreement, rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Act, to the extent applicable, in connection with a secondary
resale transaction and that such a secondary resale 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.
(iii) To the extent required by applicable federal law or Commission policy, prior to
effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors
shall provide a supplemental letter to the Commission (A) stating that the Company and the
Guarantors are registering the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the best of the Company’s and each
Guarantor’s information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or representation required by
the Commission as set forth in any no-action letter obtained pursuant to clause (i) above,
if applicable.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) below and use all commercially
reasonable efforts to effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in accordance
with the provisions hereof, and
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(ii) issue, upon the request of any Holder or purchaser of Series A Notes covered by
any Shelf Registration Statement contemplated by this Agreement, Series B Notes having an
aggregate principal amount equal to the aggregate principal amount of Series A Notes sold
pursuant to the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Series B Notes on the Shelf Registration Statement
for this purpose and issue the Series B Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement (or as
specified below only with respect to a Shelf Registration Statement) and any related Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Notes by Broker-Dealers), the Company and the Guarantors shall:
(i) use all commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus contained therein
(in light of the circumstances under which they were made) (A) to contain an untrue
statement of material fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this Agreement, the Company and
the Guarantors shall file promptly an appropriate amendment to such Registration Statement
curing such defect, and, if Commission review is required, use all commercially reasonable
efforts to cause such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in Section 3 or 4 hereof, as the
case may be; cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
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(iii) advise each Holder promptly and, if requested by such Holder, confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. If
at any time the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the Company and the
Guarantors shall use all commercially reasonable efforts to obtain the withdrawal or lifting
of such order at the earliest possible time, or file an additional Shelf Registration
Statement pursuant to Rule 415 covering all of the Transfer Restricted Securities covered by
and not sold under the initial Shelf Registration Statement or any earlier Registration
Statement (a “Subsequent Shelf Registration Statement”). If a Subsequent Shelf Registration
Statement is filed, the Company shall use all commercially reasonable efforts to cause the
Subsequent Shelf Registration Statement to be declared effective as soon as practicable
after such filing.
(iv) subject to Section 6(c)(i), if any fact or event contemplated by Section
6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Prospectus will not contain 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;
(v) furnish to each Holder in connection with such exchange or sale, if any, before
filing with the Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and comment of such
Holders in connection with such sale, if any, for a period of at least five Business Days,
and the Company will not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Holders shall reasonably object within five
Business Days after the receipt thereof. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a material fact or
omit to state any
material fact necessary to make the statements therein (in light of the circumstances
under which they were made) not misleading or fails to comply with the applicable
requirements of the Act;
11
(vi) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
each Holder in connection with such exchange or sale, if any, make the Company’s and the
Guarantors’ representatives available for discussion of such document and other customary
due diligence matters, and include such information in such document prior to the filing
thereof as such Holders may reasonably request;
(vii) with respect to a Shelf Registration Statement, make available, at reasonable
times, for inspection by each selling Holder, any underwriter(s) participating in any
disposition pursuant to a Shelf Registration Statement and any attorney or accountant
retained by such selling Holders, or any such underwriter(s), all financial and other
records, pertinent corporate documents of the Company and the Guarantors and cause the
Company’s and the Guarantors’ officers, directors and employees to supply all information
reasonably requested by any such Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) with respect to a Shelf Registration Statement, if requested by any selling
Holders in connection with such exchange or sale of the underwriter(s), if any, promptly
include in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders may
reasonably request to have included therein, including, without limitation, information
relating to the “Plan of Distribution” of the Transfer Restricted Securities; and make all
required filings of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) with respect to a Shelf Registration Statement, furnish to each selling Holder in
connection with such exchange or sale and each underwriter, if any, without charge, at least
one copy of the Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(x) with respect to a Shelf Registration Statement, deliver to each selling Holder and
each underwriter, if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably
may request; the Company and the Guarantors hereby consent to the use (in accordance with
law) of the Prospectus and any amendment or supplement thereto by each selling Holder and
each underwriter, if any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
12
(xi) upon the request of any Holders or Holder of an aggregate principal amount of at
least 33% of the outstanding principal amount of Transfer Restricted Securities, enter into
such agreements (including underwriting agreements) and make such customary representations
and warranties and take all such other customary actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any
applicable Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holders or Holder of an aggregate principal amount of at least 33% of the
outstanding principal amount of Transfer Restricted Securities, in connection with any sale
or resale pursuant to any applicable Registration Statement. In such connection, the
Company and the Guarantors shall:
(A) upon request of any Holders or Holder of an aggregate principal amount of
at least 33% of Transfer Restricted Securities, furnish (or in the case of
paragraphs (2) and (3), use all commercially reasonable efforts to cause to be
furnished) to each Holder, upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the Company and
each Guarantor by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company and such Guarantor,
confirming, as of the date thereof, the matters set forth in Sections 8(c),
8(d) and 8(e)(i) of the Purchase Agreement and such other similar matters as
such Holders may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company and the Guarantors covering matters
similar to those set forth in Exhibit A to the Purchase Agreement and such
other matter as such Holders may reasonably request, and in any event
including a statement to the effect that such counsel has participated in
conferences with officers of the Company, representatives of the independent
certified public accountants of the Company, and representatives of the
Initial Purchaser and its counsel, at which conferences the contents of the
Registration Statement and related matters were discussed and, although we
have not independently verified and are not passing upon and assume no
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and any related Prospectus, on the
basis of the foregoing, nothing has come to our attention that causes us to
believe that, as of the date of its effectiveness, the Registration
Statement or any related Prospectus contained or contains, an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that we express no view or opinion with respect to the financial
statements and notes thereto or other financial or accounting data included
in the Registration Statement or any related Prospectus); and
13
(3) a customary comfort letter, dated the date of Consummation of the
Exchange Offer, or as of the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company’s independent accountants,
in the customary form and covering matters of the type customarily covered
in comfort letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort letters
delivered pursuant to Sections 8(h) and 8(i) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained in the any agreement
entered into by the Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders and their counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be required to register or
qualify as a foreign corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any jurisdiction where it is not
now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities that will result
in such securities no longer being Transfer Restricted Securities, cooperate with the
Holders to facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xiv) shall issue, upon the request of any Holder of Series A Notes or Private Series B
Notes covered by the Shelf Registration Statement, Series B Notes, having an aggregate
principal amount equal to the aggregate principal amount of Series A Notes surrendered to
the Company by such Holder in exchange therefor or being sold by such Holder; such Series B
Notes to be registered in the name of such Holder or in the name of the purchaser(s) of such
Notes, as the case may be; in return, the Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xv) use all commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii) above;
14
(xvi) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the Depository Trust
Company;
(xvii) cooperate and assist in any filings required to be made with the FINRA and in
the performance of any due diligence investigation by any underwriter (including any
“qualified independent underwriter”) that is required to be retained in accordance with the
rules and regulations of FINRA;
(xviii) otherwise use all commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its security
holders with regard to any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period (A) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with
the first month of the Company’s first fiscal quarter commencing after the effective date of
the Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use all commercially reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xx) provide promptly to each Holder, upon request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act;
(xxi) permit Holders to withdraw tendered Series A Notes at any time prior to the close
of business, New York time, on the last Business Day on which the Exchange Offer shall
remain open;
(xxii) utilize the services of a depositary for the Exchange Offer with an address in
the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of
the Trustee; and
(xxiii) use all commercially reasonable efforts to cause the Transfer Restricted
Securities covered by a Registration Statement to be rated with such appropriate rating
agencies, if so requested in writing by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities covered by such Registration Statement or
the managing underwriter or underwriters, if any.
15
(d) Restrictions on Holders. Each selling Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section 6(c)(iii)(C) or any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof (in each case, a “Suspension Notice”), such selling Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement and
will use its commercially reasonably efforts to cause any underwriter to forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such selling Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such selling Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in each case, the
“Recommencement Date”). Each selling Holder receiving a Suspension Notice hereby agrees that it
will either (i) destroy any Prospectuses, other than permanent file copies, then in such Holder’s
possession which have been replaced by the Company with more recently dated Prospectuses or (ii)
deliver to the Company (at the Company’s expense) all copies, other than permanent file copies,
then in such selling Holder’s possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to and including the Recommencement
Date.
Notwithstanding anything herein to the contrary, any party to this Agreement (and any
employee, representative, or other agent of any party to this Agreement) may disclose to any and
all Persons, without limitation of any kind, the U.S. federal income tax treatment and tax
structure of the transactions contemplated by this Agreement (the “Transactions”) and all materials
of any kind (including opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure; provided, however, that neither party (nor any
employee, representative or other agent thereof) shall disclose any information (a) that is not
relevant to an understanding of the U.S. federal income tax treatment or tax structure of the
Transactions or (b) to the extent such disclosure could result in a violation of any federal or
state securities laws.
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing fees and
expenses; (ii) all fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates for the Series B
Notes to be issued in the Exchange Offer and Private Series B Notes to be issued in the Private
Exchange, if any, and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company and the Guarantors; (v) all reasonable
fees and disbursements of one counsel (and in addition any local counsel) as selected by Holders of
a majority in aggregate principal amount of Transfer Restricted Securities; (vi) all
application and filing fees in connection with listing the Series B Notes on a national
securities exchange or automated quotation system pursuant to the requirements hereof; (vii) all
reasonable fees and disbursements of independent certified public accountants of the Company and
the Guarantors (including the expenses of any special audit and comfort letters required by or
incident to such performance), and (viii) rating agency fees.
16
The Company will, in any event, bear its and the Guarantors’ internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors will reimburse the Initial Purchaser and the Holders of
Transfer Restricted Securities who are tendering Series A Notes into in the Exchange Offer and/or
selling or reselling Series A Notes or Series B Notes pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be
Proskauer Rose LLP, unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being
prepared.
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold
harmless each Holder, its directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against
any and all losses, claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of Series B Notes or
registered Series A Notes, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein (in light
of the circumstances under which they were made) not misleading, provided, however,
that the Company and the Guarantors shall not be liable in any such case to the extent that such
losses, claims, damages, liabilities or judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that is based upon information relating to any of the Holders
furnished in writing to the Company by any of the Holders, provided, further, that
with respect to any untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of material fact in the Registration Statement, the preliminary Prospectus or
Prospectus, the indemnity contained in this Section 8 shall not inure to the benefit of any Holder
to the extent that such loss, claim, damage, liability or judgment results solely from an untrue
statement of a material fact contained in, or the omission of a material fact from, any
Registration Statement, preliminary Prospectus or Prospectus, which untrue statement or omission
was completely corrected in the Prospectus as amended or supplemented if it shall
have been determined by a court of competent jurisdiction that (1) such Holder sold the Series
B Notes or registered Series A Notes to the Person alleging such loss, claim, damage or liability
and failed to send or give, at or prior to the written confirmation of such sale, a copy of the
Prospectus as amended or supplemented, if required by applicable law to have so delivered it, and
(2) the Company had previously furnished copies of the corrected Prospectus as amended or
supplemented to such Holder within a reasonable amount of time prior to such sale or such written
confirmation, and (3) the corrected Prospectus as amended or supplemented, if delivered would have
been a complete defense against the Person asserting such loss, claim, damage or liability.
17
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, and their respective directors and
officers, and each Person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, or the Guarantors to the same extent as the foregoing
indemnity from the Company and the Guarantors set forth in section (a) above, but only with
reference to information relating to such Holder furnished in writing to the Company by such Holder
expressly for use in any Registration Statement. In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for any amount in excess
of the amount by which the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “indemnified party”), the indemnified party
shall promptly notify the person against whom such indemnity may be sought (the “indemnifying
person”) in writing and the indemnifying party shall have the right, exercisable by giving written
notice to any indemnified party within 20 Business Days after receipt of such notice by such
indemnified party of such action, to assume, at their expense the defense of such action. Any
indemnified party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall
have failed to assume the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the indemnified party shall have
been advised by such counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the
case of the parties indemnified pursuant to Section 8(a), and by the Company and Guarantors,
in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action effected with its
written consent and no indemnifying party shall be liable for any settlement effected without its
written consent. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of judgment with respect to,
any pending or threatened action in respect of which the indemnified party is or could have been a
party and indemnity or contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the subject matter of
such action and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
18
(d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on the other hand,
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or such Guarantor, on the one hand, or by the Holder, on the
other hand, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, the Guarantors and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section
8, no Holder, its directors, its officers or any Person, if any, who controls such Holder
shall be required to contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Transfer Restricted Securities pursuant
to a Registration Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Transfer Restricted Securities held by each Holder hereunder and
not joint.
19
The Company and each Guarantor agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company or such Guarantor (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any
Holder, to such Holder or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject
to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
(a) Remedies. The Company and the Guarantors acknowledge and agree that any failure
by the Company and/or the Guarantors to comply with their respective obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Initial Purchaser or the Holders for
which there is no adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial Purchaser or any Holder
may obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s
obligations under Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will, on or
after the date of this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. Neither the Company nor any Guarantor has previously entered into any
agreement granting any registration rights with respect to its securities to any Person other than
that certain Registration Rights Agreement, dated as of March 31, 2004, by and among the Company,
the guarantors party thereto, the Initial Purchaser and Deutsche Bank Securities Inc. The rights
granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company’s and the Guarantors’ securities under any agreement
in effect on the date hereof.
20
(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions hereof may
not be given unless (i) in the case of Section 5 and 8 hereof and this Section 10(c)(i), the
Company has obtained the written consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose Transfer Restricted Securities are
being tendered pursuant to the Exchange Offer, and that does not affect directly or indirectly the
rights of other Holders whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchaser, on the other hand, and shall have the right to enforce such agreements directly to the
extent they may deem such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, e-mail or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture and with a copy to:
Proskauer Rose LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxxxx.xxx and xxxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx; and
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxxxx.xxx and xxxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx; and
(ii) if to the Company or the Guarantors:
Real Mex Restaurants, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxx.xxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Attention: Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxx.xxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Attention: Xxxxxx Xxxxxx
21
With a copy to:
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxxxxxx@xxxx.xxx
Attention: Xxxxx Xxxxxxxx
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxxxxxx@xxxx.xxx
Attention: Xxxxx Xxxxxxxx
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied or e-mailed; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders; provided, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on resale set forth
in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF TO THE
EXTENT SUCH LAWS WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
22
(j) Venue. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY; AND (II) WAIVES (A) THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE INITIAL
PURCHASER AND FOR ANY COUNTERCLAIM RELATED TO ANY OF THE FOREGOING AND (B) ANY OBJECTION WHICH THEY
MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(j) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(l) Securities Held by the Company or Its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its Affiliates shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage.
23
| REAL MEX RESTAURANTS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| RM RESTAURANT HOLDING CORP. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO XXXX CORP. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO RESTAURANT OF XXXXXX, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO RESTAURANT OF XXXXXX VALLEY, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO RESTAURANT OF VENTURA, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO RESTAURANT OF WESTWOOD, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ACAPULCO RESTAURANTS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ALA DESIGN, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| CHEVYS RESTAURANTS, LLC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| CKR ACQUISITION CORP. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| EL PASO CANTINA, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| EL TORITO FRANCHISING COMPANY |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
2
| EL TORITO RESTAURANTS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXX PACIFIC |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| REAL MEX FOODS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| TARV, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
3
| XXXXXXXXX & COMPANY, INC. |
||||
| By: | ||||
| Name: | Xxxxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
4