Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 29, 2002
BY AND AMONG
PATHMARK STORES, INC.
AND THE
SUBSIDIARY GUARANTORS REFERRED TO HEREIN
AND
DRESDNER KLEINWORT XXXXXXXXXXX - GRANTCHESTER, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
AND
X. X. XXXXXX SECURITIES INC.
AS INITIAL PURCHASERS
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 29, 2002 by and among Pathmark Stores, Inc., a
Delaware corporation (the "COMPANY"), the Subsidiary Guarantors (defined
herein), Dresdner Kleinwort Xxxxxxxxxxx - Grantchester, Inc. ("DrKW"), Credit
Suisse First Boston Corporation ("CSFB"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("XXXXXXX XXXXX") and X.X. Xxxxxx Securities Inc. (together with
DrKW, CSFB and Xxxxxxx Xxxxx, each an "INITIAL PURCHASER" and, collectively, the
"INITIAL PURCHASERS"), each of whom has agreed to purchase the Company's 8 3/4%
Senior Subordinated Notes due 2012 (the "SENIOR SUBORDINATED NOTES"), subject to
the terms and conditions set forth in the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
January 23, 2002 (the "PURCHASE AGREEMENT"), by and among the Company, the
Subsidiary Guarantors and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Senior Subordinated Notes, each of the Company and
the Subsidiary Guarantors has agreed to provide the registration rights and
other agreements set forth in this Agreement. The execution and delivery of this
Agreement by each of the Company and the Subsidiary Guarantors is a condition to
the obligations of the Initial Purchasers to purchase Senior Subordinated Notes
under the Purchase Agreement. The Senior Subordinated Notes and the Guarantees
(as defined below) in respect thereof are to be issued under an indenture to be
dated as of the date hereof among the Company, the Subsidiary Guarantors and
Xxxxx Fargo Bank Minnesota, N.A., as trustee. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture
(as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ADDITIONAL INTEREST: As defined in Section 5 hereof.
AFFILIATE: As defined in Rule 144 of the Securities Act.
AGREEMENT: As defined in the preamble.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: Any day that is not a Saturday, Sunday or a day on which
banks are required or permitted to be closed in the State of New York.
CLOSING DATE : The date hereof.
COMPANY: As defined in the preamble.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Registered Exchange Offer and the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of the
Registered Exchange Offer open for a period not less than the minimum period
required pursuant
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to Section 3(c) hereof and (c) the delivery by the Company to the registrar
under the Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Senior Subordinated Notes tendered by holders
thereof pursuant to the Registered Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(c) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 8 3/4% senior subordinated notes due 2012
that are identical to the Senior Subordinated Notes, except that such Exchange
Notes bear no legends regarding transfer restrictions, issued pursuant to an
Indenture in the Registered Exchange Offer or as contemplated by Sections 4 and
6 hereof.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Registered Exchange Offer, including the related Prospectus.
FILING DEADLINE: As defined in Section 3(a) hereof.
GUARANTEE: The guarantees in respect of Senior Subordinated Notes,
Exchange Notes or Private Exchange Notes issued under the Indenture.
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The indenture referred to in the preamble and any other
indenture governing Notes and related Guarantees which is identical in all
material respects to the indenture referred to in the preamble, other than such
changes to any such indenture as are necessary to comply with the TIA, and
which, in either case, has been qualified under the TIA, and as amended or
supplemented from time to time in accordance with the terms thereof.
INITIAL PURCHASERS: As defined in the preamble.
NOTES: The Senior Subordinated Notes, the Exchange Notes and the
Private Exchange Notes.
PARTICIPATING BROKER-DEALER: Any Broker-Dealer that (i) holds Notes
that were acquired for its own account as a result of market-making activities
or other trading activities (other than Notes acquired directly from the Company
or any of its Affiliates) that intends to participate in the Registered Exchange
Offer or (ii) holds Exchange Notes acquired in the Registered Exchange Offer.
PRIVATE EXCHANGE: As defined in Section 3(b) hereof.
PRIVATE EXCHANGE NOTES: As defined in Section 3(b) hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, 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.
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PURCHASE AGREEMENT: As defined in the preamble.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTERED EXCHANGE OFFER: An offer by the Company registered under the
Securities Act to exchange any and all outstanding Senior Subordinated Notes for
a like aggregate principal amount of Exchange Notes.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Subsidiary Guarantors relating to (a) an offering of Exchange Notes pursuant
to or following the Consummation of a Registered Exchange Offer or (b) the
registration for resale of Notes 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.
RULE 144: Rule 144 promulgated under the Securities Act.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended.
SENIOR SUBORDINATED NOTES: As defined in the preamble.
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.
SUBSIDIARY GUARANTORS: As defined in the Purchase Agreement.
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.
TRANSFER RESTRICTED SECURITIES: Each (a) Senior Subordinated Note and,
if issued, each Private Exchange Note, together with the Guarantees in respect
thereof, until the earliest to occur of (i) the date on which such Senior
Subordinated Note or Private Exchange Note, as the case may be, is exchanged in
the Registered Exchange Offer for an Exchange Note which is entitled to be
resold to the public by the holder thereof without complying with the
registration and prospectus delivery requirements of the Securities Act, (ii)
the date on which such Senior Subordinated Note or Private Exchange Note, as the
case may be, has been disposed of in accordance with a Shelf Registration
Statement and the purchaser thereof has been issued an Exchange Note which is
entitled to be resold to the public by the holder thereof without complying with
the registration and prospectus delivery requirements of the Securities Act, or
(iii) the date on which such Senior Subordinated Note or Private Exchange Note,
as the case may be, is distributed to the public pursuant to Rule 144 under the
Securities Act and the purchaser
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thereof has been issued an Exchange Note which is entitled to be resold to the
public by the holder thereof without complying with the registration and
prospectus delivery requirements of the Securities Act, and (b) Exchange Note
held by a Participating Broker-Dealer until the date on which such Exchange Note
is disposed of by such Participating Broker-Dealer pursuant to a Registration
Statement, including the delivery of the Prospectus contained therein, and such
Exchange Note is entitled to be resold to the public by the holder thereof
without complying with the registration and prospectus delivery requirements of
the Securities Act.
TRIGGER DATE: As defined in Section 4 hereof.
TRUSTEE: The trustee under an Indenture.
SECTION 2. SECURITIES SUBJECT TO AGREEMENT
(a) The securities entitled to the benefits of this Agreement are the
Senior Subordinated Notes and the Private Exchange Notes until all of such Notes
shall cease to be Transfer Restricted Securities.
(b) A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person beneficially owns such Transfer
Restricted Securities.
SECTION 3. EXCHANGE OFFER
(a) Unless the Registered 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 Subsidiary Guarantors shall (i)
cause the Exchange Offer Registration Statement to be filed with the SEC no
later than 120 days after the Closing Date (such 120th day being the "FILING
DEADLINE"), (ii) use their best efforts to cause such Exchange Offer
Registration Statement to be declared effective no later than 180 days after the
Closing Date (such 180th day being the "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 Securities
Act and (C) cause all necessary filings, if any, in connection with the
registration and qualification of the Exchange Notes to be made under the "blue
sky" laws of such jurisdictions as are necessary to permit Consummation of the
Registered Exchange Offer, and (iv) as soon as practical after the date the SEC
declares the Exchange Offer Registration Statement effective, commence and
Consummate the Registered Exchange Offer. The Registered Exchange Offer shall be
on the appropriate form permitting (i) registration of the Exchange Notes and
related Guarantees to be offered in exchange for the Senior Subordinated Notes
and related Guarantees that are Transfer Restricted Securities and (ii) resales
of Exchange Notes by Participating Broker-Dealers as contemplated by Section 3
(d) below.
(b) If, prior to consummation of the Registered Exchange Offer, the
Initial Purchasers hold any Senior Subordinated Notes acquired by them and
having the status of an unsold allotment in the initial distribution, the
Company upon the request of the Initial Purchasers shall, simultaneously with
the delivery of the Exchange Notes in the Registered Exchange Offer, issue and
deliver to the Initial Purchasers in exchange (the "PRIVATE EXCHANGE") for
Senior Subordinated Notes held by the Initial Purchasers a like principal amount
of debt securities (the "PRIVATE EXCHANGE NOTES") and related Guarantees that
are identical to the Exchange Notes and related Guarantees, except that such
Private Exchange Notes shall bear appropriate legends
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regarding transfer restrictions. The Private Exchange Notes shall (i) be issued
under the same Indenture, (ii) be of the same class and series, and (iii) bear
the same CUSIP number, as the Exchange Notes.
(c) The Company and the Subsidiary Guarantors shall cause the Exchange
Offer Registration Statement to be open for a period of not less than the
minimum period required under applicable federal and state securities laws to
Consummate the Registered Exchange Offer; PROVIDED, HOWEVER, that in no event
shall such period be less than 30 days after the date notice of the Registered
Exchange Offer is mailed to the holders of the Notes. The Company and the
Subsidiary Guarantors shall cause the Registered Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
Exchange Notes and related Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Subsidiary Guarantors shall use
their respective best efforts to cause the Registered Exchange Offer to be
Consummated no later than 45 days after the Exchange Offer Registration
Statement has become effective, (such 45th day being the "CONSUMMATION
DEADLINE").
(d) Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the Registered
Exchange Offer as described in Section 3(a)(iv), it being the objective of such
Registered Exchange Offer to enable each Holder of Transfer Restricted
Securities electing to exchange the Senior Subordinated Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Notes in the ordinary course of
such Holder's business and has no arrangements with any person to participate in
the distribution of the Exchange Notes and is not prohibited by any law or
policy of the SEC from participating in the Registered Exchange Offer) to trade
such Exchange Notes 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.
(e) The Company shall use its 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 lawfully delivered
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 Notes; provided, however, that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered
by a Participating Broker-Dealer or an Initial Purchaser, such period shall end
on the date (the "BROKER-DEALER DATE") that is the earliest of the date 180 days
following the effective date of the Exchange Offer Registration Statement and
the date on which all Participating Broker-Dealers and the Initial Purchasers
have sold all Exchange Notes held by them (unless such period is extended
pursuant to this Agreement) 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 Notes for a period of not less than
180-days after the consummation of the Registered Exchange Offer.
(f) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Participating Broker-Dealer may exchange Transfer Restricted
Securities held by it pursuant to the Registered Exchange Offer. The Company and
the Subsidiary Guarantors acknowledge, and such "Plan of Distribution" shall
also indicate that under certain circumstances, (i) a Participating
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act, (ii) in such event a Participating Broker-Dealer would be
required to deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the securities received by
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such Participating Broker-Dealer in the Registered Exchange Offer, and (iii)
such prospectus delivery requirement may be satisfied by the delivery by such
Participating Broker-Dealer of the prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Participating
Broker-Dealers that the SEC may require in order to permit such resales, but
shall not name any such Participating Broker-Dealer or disclose the amount of
securities held by any such Participating Broker-Dealer except to the extent
specifically required by the SEC as a result of a change in policy after the
date of this Agreement. The Company and the Guarantors shall keep the Exchange
Offer Registration Statement continuously effective, supplemented, amended and
current as required by the provisions of paragraphs (a) and (c) of Section 6
below to the extent necessary to ensure that it is available for resales of
Notes , including any Guarantees thereof, acquired by Participating
Broker-Dealers, and shall ensure that the Exchange Offer Registration Statement
conforms with all applicable requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the SEC as announced from time to
time, for a period of not less than 180 days from the Consummation Deadline. The
Company and the Subsidiary Guarantors shall provide sufficient copies of the
latest version of any such prospectus to Participating Broker-Dealers promptly
upon request, and in no event later than one day following any such request, at
any time until the Broker-Dealer Date in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the SEC, the Company is not permitted to effect a
Registered Exchange Offer, as contemplated by Section 3 hereof, (ii) any Holder
(other than a Participating Broker-Dealer) shall have notified the Company in
writing that such Holder is prohibited by law or SEC policy from participating
in the Registered Exchange Offer or (iii) any Holder (other than a Participating
Broker-Dealer) shall have notified the Company in writing that such Holder may
not resell the Exchange Notes acquired by such Holder in the Registered Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not available for such resale.
The Company shall take the following actions (the date on which any of the
conditions described in the foregoing clauses (i) through (iii) occur, including
in the case of clauses (ii) or (iii) the receipt of the required notice, being a
"TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45
days after the Trigger Date (such 45th day being a "SHELF
FILING DEADLINE")) file with the SEC and thereafter use its
best efforts to cause to be declared effective no later than
225 days after the Trigger Date in respect of the occurrence
of the condition at clause (i) above and 90 days after the
Trigger Date in respect of the occurrence of a condition at
clauses (ii) or (iii) above (such 90th or 225th day, whichever
is applicable, being a "SHELF EFFECTIVENESS DEADLINE") a
registration statement (the "SHELF REGISTRATION STATEMENT"
and, together with the Exchange Offer Registration Statement,
a "REGISTRATION STATEMENT") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time
in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "SHELF REGISTRATION");
provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Senior Subordinated
Notes held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder.
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(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully
delivered by the Holders of the relevant Senior Subordinated
Notes, for a period of two years (or for such longer period if
extended pursuant to Section 6(c)(iv) below) from the date of
its effectiveness or such shorter period that will terminate
when all the Notes covered by the Shelf Registration Statement
(i) have been sold or disposed of pursuant thereto or (ii) are
no longer restricted securities (as defined in Rule 144 under
the Securities Act, or any successor rule thereof).
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply
in all material respects with the applicable requirements of
the Securities Act and the rules and regulations of the SEC
and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
SECTION 5. ADDITIONAL INTEREST
(a) The parties hereto acknowledge and agree that the holders of Notes
will suffer material damages if the Company and the Subsidiary Guarantors fail
to fulfill their obligations under Section 3 or Section 4 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company and the Subsidiary Guarantors hereby jointly and
severally agree to pay additional cash interest ("ADDITIONAL INTEREST") on
Transfer Restricted Securities if (i) any Registration Statement required by
this Agreement is not filed with the SEC on or prior to the Filing Deadline or
Shelf Filing Deadline, as applicable, (ii) any such Registration Statement has
not been declared effective by the SEC on or prior to the applicable
Effectiveness Deadline or the Shelf Effectiveness Deadline, as applicable, (iii)
the Registered 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 for its intended purpose without being succeeded
within 5 days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself promptly declared effective (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT").
Additional Interest shall accrue and be payable on the outstanding principal
amount of Transfer Restricted Securities from the date of such Registration
Default at a rate of 0.25% per annum for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of Additional
Interest shall increase by an additional 0.25% per annum with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest of 1.0% per annum; PROVIDED, that the
Company and the Subsidiary Guarantors shall in no event be required to pay
Additional Interest for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement or the Shelf Registration Statement,
in the case of (i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, in the case of (ii)
above, (3) upon Consummation of the Registered Exchange Offer, in the case of
(iii) above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that causes the
Exchange Offer Registration Statement or the Shelf Registration Statement to
again be declared effective or made usable in the case of
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(iv) above, the Additional Interest payable as a result of such clause (i),
(ii), (iii) or (iv), as applicable, shall cease to accrue upon the cure of all
such Registration Defaults.
(b) All accrued Additional Interest shall be paid in the manner
provided for the payment of interest in the Indenture, on each Interest Payment
Date, as more fully set forth in the Indenture and the Notes. All of the
obligations of the Company and the Subsidiary Guarantors to pay Additional
Interest hereunder with respect to any securities shall survive until such time
as such obligations shall have been discharged and satisfied in full,
notwithstanding the fact that any such securities shall at any time cease to be
Transfer Restricted Securities hereunder.
SECTION 6. REGISTRATION PROCEDURES
(a) In connection with the Registered Exchange Offer, the Company and
the Subsidiary Guarantors shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use their respective reasonable best efforts to effect
such exchange and to permit the resale of Exchange Notes by Participating
Broker-Dealers and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in SEC policy with respect to exchange offers such as the
Registered Exchange Offer, that in the reasonable opinion of counsel to
the Company raises a substantial question as to whether the Registered
Exchange Offer is permitted by applicable federal law, the Company and
the Subsidiary Guarantors hereby agree to seek a no-action letter or
other favorable decision from the SEC allowing the Company and the
Subsidiary Guarantors to Consummate a Registered Exchange Offer in the
manner contemplated hereby. The Company and the Subsidiary Guarantors
hereby agree to pursue the issuance of such a decision to the SEC staff
level. In connection with the foregoing, the Company and the Subsidiary
Guarantors hereby agree to take all such other actions as may be
requested by the SEC or otherwise required in connection with the
issuance of such decision, including without limitation (A)
participating in telephonic conferences with the SEC, (B) delivering to
the SEC staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded
that such a Registered Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
SEC staff.
(ii) As a condition to its participation in the Registered
Exchange Offer, each holder of Notes, including, without limitation,
any Holder who is a Broker-Dealer, shall furnish, upon the request of
the Company, prior to the Consummation of the Registered Exchange
Offer, a written representation to the Company and the Subsidiary
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company or the Subsidiary
Guarantors, (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 Exchange Notes to be issued in the Registered
Exchange Offer and (C) it is acquiring the Exchange Notes in its
ordinary course of business. As a condition to its participation in the
Registered Exchange Offer, each holder using the Registered Exchange
Offer to participate in a distribution of the Exchange Notes
acknowledges and agrees that, if the resales are of Exchange Notes
obtained by such holder in exchange for Senior Subordinated Notes
acquired directly from the Company or an Affiliate thereof, it (1)
could not, under SEC policy as in effect on the date of this Agreement,
rely on the position of the SEC enunciated in XXXXXX XXXXXXX AND CO.,
INC. (available June 5, 1991)
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and EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as
interpreted in the SEC'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 Securities Act 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 under the Securities Act, in connection with such sale.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Subsidiary Guarantors shall
provide a supplemental letter to the SEC (A) stating that the Company
and the Subsidiary Guarantors are registering the Registered Exchange
Offer in reliance on the position of the SEC enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), XXXXXX XXXXXXX &
CO. INC. (available June 5, 1991), as interpreted in the SEC'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 Subsidiary Guarantor
has entered into any arrangement or understanding with any person to
distribute the Exchange Notes to be received in the Registered Exchange
Offer and that, to the best of the Company's and each Subsidiary
Guarantor's information and belief, each holder participating in the
Registered Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Registered Exchange Offer and (C) including any
other undertaking or representation required by the SEC in connection
with any no action letter obtained pursuant to clause (i) above or
otherwise.
(b) In connection with the Shelf Registration Statement, the Company
and the Subsidiary Guarantors shall:
(i) comply with all the provisions of Section 6(c) below and
use their respective reasonable best efforts to effect such
registration to permit the sale of the Notes in accordance with the
intended method or methods of distribution thereof and pursuant thereto
the Company and the Subsidiary Guarantors will prepare and file with
the SEC a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Notes in accordance with the intended
method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any holder or purchaser of
Senior Subordinated Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Notes having an aggregate
principal amount equal to the aggregate principal amount of Senior
Subordinated Notes sold pursuant to such Shelf Registration Statement
and surrendered to the Company for cancellation; the Company shall, if
necessary, register Exchange Notes on the Shelf Registration Statement
for this purpose and issue the Exchange Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company and the Subsidiary Guarantors
shall:
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(i) 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 Prospectus (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 Notes during the period required by this Agreement, the
Company and the Subsidiary Guarantors shall file promptly an
appropriate amendment to such Registration Statement curing such
defect, and, if SEC review is required, use their respective reasonable
best efforts to cause such amendment to be declared effective as soon
as practicable;
(ii) prepare and file with the SEC 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 duly filed pursuant to Rule
424 under the Securities Act, and to comply fully with Rules 424, 430A
and 462, as applicable, under the Securities Act in a timely manner;
and comply with the provisions of the Securities 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;
(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 SEC 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 SEC
of any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any state
securities commission of the qualification of the Notes 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 SEC 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 Subsidiary Guarantors shall use their
respective reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(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 Notes, the
Prospectus will not contain an untrue
12
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) (A) in the case of a Registered Exchange Offer, furnish
counsel for any Participating Broker-Dealer, if any, that has given at
least five Business Days' prior written or oral notification to the
Company that it will participate in the Registered Exchange Offer and
(B) in the case of a Shelf Registration Statement, furnish counsel for
the holders of Notes, before filing with the SEC, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (excluding all documents incorporated by reference in such
Registration Statement at the time of or after the initial filing of
such Registration Statement as a result of requirements for periodic
reporting under the Exchange Act), which documents will be subject to
the review of such holders and Participating Broker-Dealer, if any, for
a period of at least five Business Days, and the Company and the
Subsidiary Guarantors will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (excluding all such documents incorporated by
reference as a result of requirements for periodic reporting under the
Exchange Act) to which a selling holder of Notes covered by such
Registration Statement (in the case of a Shelf Registration Statement)
or any Participating Broker-Dealer (in the case of an Exchange Offer
Registration Statement), shall reasonably object within five Business
Days after the receipt thereof. A Participating Broker-Dealer or
selling 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 a material
misstatement or omission;
(vi) (A) in the case of a Registered Exchange Offer, furnish
counsel for any Participating Broker-Dealer that has given at least
five Business Days' prior written or oral notification to the Company
that it will participate in the Registered Exchange Offer and (B) in
the case of a Shelf Registration Statement, furnish counsel for the
holders of Notes, prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus
included therein, copies of such document, and, in each case, make the
Company's representatives (and representatives of the Subsidiary
Guarantors) 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, any Participating
Broker Dealers or their respective counsel, reasonably may request
provided, however, that the information gathering referred to in this
Section 6(c)(vi) and in Section 6(c)(vii) below (x) shall be
coordinated by one counsel, who shall be Cravath, Swaine & Xxxxx
(unless another firm shall be chosen by the holders of a majority in
principal amount of the Notes), and (y) shall not be available for any
Person who does not agree in writing to hold such information in
confidence;
(vii) (A) in the case of a Registered Exchange Offer, make
available at reasonable times for inspection by any Participating
Broker-Dealer, and any attorney or accountant retained by any such
Participating Broker-Dealer and (B) in the case of a Shelf Registration
Statement, furnish holders, and any attorney or accountant retained by
such holders, all material financial and other records, pertinent
corporate documents and properties of the Company and the Subsidiary
Guarantors and cause the Company's and the Subsidiary Guarantors'
officers, directors and employees to supply all material information
reasonably requested by any such Participating Broker-Dealer, holder,
13
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness, in
each case, subject to executing a confidentiality undertaking in
customary form and with respect to confidential information and/or
proprietary information of the Company and the Subsidiary Guarantors;
(viii) (A) in the case of a Registered Exchange Offer, if
requested by any Participating Broker-Dealer, or their counsel, or (B)
in the case of a Shelf Registration Statement, if requested by any
holder or their counsel, promptly incorporate in any Registration
Statement or Prospectus included therein, pursuant to a supplement or
post-effective amendment if necessary, such material information as
such Participating Broker-Dealers, holders or their respective counsel
may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Notes, information with respect to the principal amount of Notes being
sold, the purchase price being paid therefor and any other terms of the
offering of the Notes to be sold in such offering; 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 incorporated in such Prospectus supplement or
post-effective amendment;
(ix) furnish (A) in the case of a Registered Exchange Offer,
to any Participating Broker-Dealer, and any underwriter(s), if such
Participating Broker-Dealer or underwriter(s) have given prior written
or oral notification to the Company that they will participate in the
Registered Exchange Offer, or (B) in the case of a Shelf Registration
Statement, to each selling holder, without charge, at least one copy of
the Registration Statement, as first filed with the SEC, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(x) deliver to each selling holder, each Participating
Broker-Dealer and any underwriter(s), 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 Subsidiary Guarantors hereby consent to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the selling holders, each of the Participating
Broker-Dealers, and each of the other underwriter(s), if any, in
connection with the offering and the sale of the Notes covered by the
Prospectus or any amendment or supplement thereto, subject to
compliance with paragraph (d) of this Section;
(xi) in the case of a Shelf Registration Statement and, to the
extent that the Company is required to maintain an effective Exchange
Offer Registration Statement for any Participating Broker-Dealer, enter
into such customary agreements (including, without limitation,
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
Notes pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested by any
holder of Notes or Participating Broker-Dealer in connection with any
sale or resale pursuant to any Registration Statement contemplated by
this Agreement; and whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten
registration, the Company and the Subsidiary Guarantors shall:
14
(A) upon request of any holder, furnish (or in the
case of paragraphs (2) and (3), use its reasonable best
efforts to cause to be furnished) to each holder, upon
Consummation of the Registered Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the case
may be, and to each Participating Broker-Dealer upon five
Business Days' prior written or oral notice to the Company
that it is participating in the Registered Exchange Offer, but
in no case prior to the Consummation of the Registered
Exchange Offer:
(1) a certificate, dated such date, signed
on behalf of the Company and each Subsidiary
Guarantor by (x) the President or any Vice President
of the Company and such Subsidiary Guarantor and (y)
a principal financial or accounting officer of the
Company, confirming, as of the date thereof, the
matters set forth in Sections 9(d) and 9(o) 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 Registered Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the
Company and the Subsidiary Guarantors covering
matters similar to those set forth in paragraph (e)
of Section 9 of the Purchase Agreement and such other
matters as such holder may reasonably request, and in
any event including a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of the Company and
the Subsidiary Guarantors, representatives of the
independent public accountants for the Company and
the Subsidiary Guarantors and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to materiality to the extent
such counsel deems appropriate upon the statements of
officers and other representatives of the Company and
the Subsidiary Guarantors, no facts came to such
counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Registered Exchange Offer, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Registered Exchange Offer, as of the date of
Consummation, contained an untrue statement of a
material fact or omitted 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. Without limiting the foregoing,
such
15
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the
date of Consummation of the Registered 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 Section 9(g) of
the Purchase Agreement;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, indemnification provisions
and procedures no less favorable to the holders, any
Participating Broker-Dealer or any underwriter than the
comparable provisions hereof;
(C) deliver such other documents and certificates as
may be reasonably requested by the selling holders or any
Participating Broker-Dealer to evidence compliance with the
matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the
Company and the Subsidiary Guarantors pursuant to this clause
(xi); and
(D) if at any time during, in the case of a
Registered Exchange Offer, the one-year period contemplated by
Section 3(d) hereof, or, in the case of a Shelf Registration,
the two-year period contemplated by Section 4(b) hereof, the
representations and warranties of the Company and the
Subsidiary Guarantors contemplated in clause (A)(1) above
cease to be true and correct, so advise any Participating
Broker-Dealer and each selling holder promptly and, if
requested by such Persons, shall confirm such advice in
writing;
(xii) prior to any public offering of Notes, cooperate with
the selling holders or any Participating Broker-Dealer and their
counsel in connection with the registration and qualification of the
Notes under the securities or "blue sky" laws of such jurisdictions as
the selling holders or any Participating Broker-Dealer may request and
do any and all other acts or things necessary or reasonably advisable
to enable the disposition in such jurisdictions of the Notes covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that neither
the Company nor any Subsidiary 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 Notes that will result
in such Notes no longer being Transfer Restricted Securities, cooperate
with the holders to facilitate the
16
timely preparation and delivery of certificates representing Notes to
be sold and not bearing any restrictive legends;
(xiv) use their respective reasonable best efforts to cause
the disposition of the Notes 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 Notes, subject to the proviso
contained in clause (xii) above;
(xv) provide a CUSIP number for all Notes not later than the
effective date of a Registration Statement covering such Notes and
provide the Trustee with printed certificates for the Notes which are
in a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use their respective reasonable best efforts
to comply with all applicable rules and regulations of the SEC, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a
12-month period beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period;
(xvii) cause each 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 any Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its reasonable best
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 SEC to enable such Indenture to be so
qualified in a timely manner;
(xviii) cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc. and in
the performance of any due diligence investigation by any Participating
Broker-Dealer or other underwriter (including any "qualified
independent underwriter") that is required to be retained in accordance
with the conduct rules ("Rules") and regulations of the National
Association of Securities Dealers, Inc. Without limitation, such
assistance by the Company may include (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter"
(as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Senior Subordinated Debt, to
exercise usual standards of due diligence in 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 Senior Subordinated Debt, (ii)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 8 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 the Rules;
(xix) cause all Notes covered by the Registration Statement to
be listed on each securities exchange on which similar securities
issued by the Company and the Subsidiary Guarantors are then listed if
requested by the holders of a majority in
17
aggregate principal amount of Senior Subordinated Notes or the managing
underwriter(s), if any; and
(xx) provide promptly to each Holder and any affiliated market
maker thereof, upon request, each document filed with the SEC pursuant
to the requirements of Section 13 or 15(d) of the Exchange Act.
(d) Each 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 Holder
will keep such Suspension Notice confidential and forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(iv) hereof, or
(ii) such 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 Holder receiving a Suspension Notice
hereby agrees that it will promptly, 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 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 the date of
delivery of the Recommencement Date. Each Holder agrees to deliver the
Prospectus, if required by the Securities Act, and, if so required, in the
manner and at the time required by the Securities Act. Each Holder further
agrees that it will use the Prospectus and any amendment or supplement thereto,
and make any offer and sale of the Notes, only in compliance with the terms of
this Agreement and all laws and regulations applicable to it, and will, in the
case of a Participating Broker-Dealer, conform its offering and sale of Notes to
the plan of distribution set forth in the Prospectus.
(e) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the SEC, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the Company shall
use its reasonable best efforts to reflect in each such document, when so filed
with the SEC, such comments as such Initial Purchaser reasonably may propose;
(ii) include the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and 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; (iii) if
requested by an Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement; (iv)
include within the prospectus contained in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
18
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of Exchange Notes received by such Participating Broker-Dealer
in the Registered Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of the staff of
the SEC; and (v) in the case of a Shelf Registration Statement, include the
names of the Holders who propose to sell Notes pursuant to the Shelf
Registration Statement as selling securityholders.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Company and the Subsidiary Guarantors, 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 Exchange Notes to be issued
in the Registered Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company, the Subsidiary Guarantors and the holders of Notes, respectively;
(v) all application and filing fees in connection with listing the Exchange
Notes on a national securities exchange or automated quotation system pursuant
to the requirements hereof, and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Subsidiary Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
(b) The Company and the Subsidiary Guarantors will, in any event, bear
its and the Subsidiary Guarantors' internal expenses, including, without
limitation, all salaries and expenses of their officers and employees performing
legal or accounting duties, the expenses of any annual or periodic audit or
other accounting review and the fees and expenses of any person, including
special experts or consultants, retained by the Company or the Subsidiary
Guarantors. Notwithstanding any requirement to the contrary set forth in this
Agreement, the Company shall not be responsible for the costs incurred by the
Initial Purchasers in connection with this Agreement.
(c) 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 Subsidiary
Guarantors will reimburse the Initial Purchasers and the holders of Notes
tendered in the Registered Exchange Offer and/or offered or sold under the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the fees and disbursements of not more than one counsel, who
shall be Cravath, Swaine & Xxxxx, unless another firm shall be chosen by the
holders of a majority in principal amount of the Notes for whose benefit such
Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) Each of the Company and each of the Subsidiary Guarantors agrees,
jointly and severally, to indemnify and hold harmless each holder of Notes, its
directors, partners, officers, its affiliates and each Person, if any, who
controls such holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), from and against any and all losses, claims,
damages, liabilities and judgments, (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action
19
that could give rise to any such losses, claims, damages, liabilities or
judgments) (collectively "LOSSES") that a holder of Notes may become subject to
under the Securities Act, the Exchange Act or otherwise, insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement, preliminary prospectus
or Prospectus (or any amendment or supplement thereto) relating to a Shelf
Registration or arise out of, or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission made therein in
reliance upon and in conformity with information relating to any such holder
furnished to the Company in writing by or on behalf of any such holder expressly
for use therein.
(b) Each holder of Notes agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Subsidiary Guarantors, and each
other holder of Notes, and their respective directors, partners, officers,
affiliates and each person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company or the
Subsidiary Guarantors and each other holder of Notes to the same extent as the
foregoing indemnity from the Company and the Subsidiary Guarantors set forth in
Section 8(a) above, but only with reference to information relating to such
holder furnished to the Company in writing by or on behalf of such holder
expressly for use in any Registration Statement. In no event shall any holder of
Notes, 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 Notes pursuant to a
Registration Statement exceeds (i) the amount paid by such holder for such Notes
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; provided that the omission to notify the indemnifying party will not
relieve it from any liability it may have to any indemnified person otherwise
than under Section 8(a) or 8(b) above. The indemnifying party shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all fees and expenses
of such counsel, as incurred (except that in the case of any action in respect
of which indemnity may be sought pursuant to both Sections 8(a) and 8(b), a
holder of Notes shall not be required to assume the defense of such action
pursuant to this Section 8(c), but may employ separate counsel and participate
in the defense thereof, but the fees and expenses of such counsel, except as
provided below, shall be at the expense of the holder). 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
20
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 of Notes, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company and Subsidiary 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 (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than 20 days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. 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 any 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 any indemnified party.
(d) To the extent that the indemnification provided for in this Section
8 is unavailable to an indemnified party or insufficient to hold it harmless 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 Subsidiary Guarantors, on the one hand, and the holders of
Notes, on the other hand, from their sale of Notes 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
Subsidiary 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 Subsidiary
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
Subsidiary 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 Subsidiary Guarantors and each holder of any Note
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 such 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
21
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 of any Note, 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 Notes pursuant to a Registration Statement exceeds (i)
the amount paid by such holder for such Notes 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Notes held by each holder hereunder. The holders'
obligations to contribute pursuant to this Section 8(d) are not joint.
SECTION 9. RULE 144A AND RULE 144
Each of the Company and the Subsidiary Guarantors agrees with each
holder of Notes, for so long as any Notes remain outstanding, (i) whether or not
either of the Company or any Subsidiary Guarantor is subject to Section 13 or
15(d) of the Exchange Act, to make available, upon the reasonable request of any
holder, to such holder or beneficial owner of Notes in connection with any sale
thereof and any prospective purchaser of Notes designated by such holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of Notes pursuant to Rule 144A, and
(ii) during any period in which either of the Company or such Subsidiary
Guarantor 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 Notes
pursuant to Rule 144.
SECTION 10. UNDERWRITTEN REGISTRATIONS
(a) No holder of Notes may participate in any underwritten offering
under a Registration Statement hereunder unless such holder (i) agrees to sell
such holder's Notes on the basis provided in any underwriting arrangements
approved pursuant to the terms hereof and (ii) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
(b) The holders of Notes covered by the Shelf Registration Statement
who desire to do so may sell such Notes in an underwritten offering. In any such
offering, each investment banking firm that will manage and/or participate in
the offering will be selected, subject to the consent of the Company, which
consent shall not be unreasonably withheld or delayed, by the holders of a
majority in aggregate principal amount of the Notes included in such offering.
SECTION 11. MISCELLANEOUS
(a) The Company and the Subsidiary Guarantors acknowledge and agree
that (i) any failure by the Company and/or the Subsidiary Guarantors to comply
with their respective obligations hereunder may result in material irreparable
injury to the Initial Purchasers or the holders of Notes for which there is no
adequate remedy at law; (ii) it will not be possible to
22
measure damages for such injuries precisely; and (iii) in the event of any such
failure, the Initial Purchasers or any holder of Notes may obtain such relief as
may be required specifically to enforce the Company's and/or the Subsidiary
Guarantor's obligations hereunder, provided that the Additional Interest
contemplated in Section 5 hereof shall be the exclusive remedy for any breach of
Sections 3 and 4 hereof. The Company and the Subsidiary Guarantors further
agree, subject to the proviso in the preceding sentence, to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(b) Neither the Company nor any Subsidiary Guarantor will, on or after
the date of this Agreement, enter into any agreement with respect to its debt
securities that is inconsistent with the rights granted under this Agreement or
otherwise conflicts with the provisions hereof. Except as set forth on Annex E
hereto, neither the Company nor any Subsidiary Guarantor has previously entered
into any agreement granting any registration rights with respect to its debt
securities to any person. The rights granted hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any of the Company's or the Subsidiary Guarantors' debt securities under any
agreement in effect on the date hereof.
(c) 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 hereof and this
Section 11(c)(i), the Company has obtained the written consent of holders of all
outstanding Notes entitled to Additional Interest under Section 5 hereof 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 (excluding Transfer Restricted Securities held by
the Company or its Affiliates). 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 Registered Exchange Offer, and that does not affect directly or
indirectly the rights of other holders whose Notes are not being tendered
pursuant to such Registered Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Registered Exchange Offer.
(d) The holders of outstanding Notes (excluding Notes held by the
Company or its Affiliates) shall be third party beneficiaries to the agreements
made hereunder between the Company and the Subsidiary Guarantors, on the one
hand, and the Initial Purchasers, 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 their rights or the rights of holders of
outstanding Notes hereunder.
(e) 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), telecopier, 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 such Registrar; and
(ii) if to the Company or the Subsidiary Guarantors:
Pathmark Stores, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
23
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
Senior Vice President,
Secretary and General
Counsel
With a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
Business Days after being deposited in the mail, postage prepaid, if mailed;
(iii) when receipt acknowledged, if telecopied; and (iv) 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) 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 of
outstanding Notes (excluding Notes held by the Company or its Affiliates);
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, of the Purchase Agreement or the Indenture. If any transferee of any
holder shall acquire Notes in any manner, whether by operation of law or
otherwise, such Notes shall be held subject to all of the terms of this
Agreement, and by taking and holding such Notes 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) 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) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT
OF LAW RULES THEREOF.
(j) 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.
24
(k) 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. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(l) Whenever the consent or approval of Holders of a specified
percentage of principal amount of Senior Subordinated Notes is required
hereunder, Senior Subordinated Notes held by the Company or its affiliates
(other than subsequent Holders of Senior Subordinated Notes if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Senior Subordinated Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PATHMARK STORES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
PLAINBRIDGE LLC
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Authorized Signatory
BRIDGE STUART, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
ADBRETT CORP.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
AAL REALTY CORP.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
XXX PROPERTIES CORP.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
26
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written by Dresdner Kleinwort
Xxxxxxxxxxx - Grantchester, Inc. on
behalf of the Initial Purchasers.
DRESDNER KLEINWORT XXXXXXXXXXX - GRANTCHESTER, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: XXXXXX XXXXXXX
Title: CEO, NA
27
ANNEX A
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in exchange for Senior Subordinated
Notes where such Senior Subordinated Notes 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."
28
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Senior Subordinated Notes, where such Senior Subordinated Notes
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 Notes. See "Plan of Distribution."
29
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in
exchange for Senior Subordinated Notes where such Senior Subordinated Notes 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 Notes may
be required to deliver a Prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes 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 Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes 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 Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes 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, fees, discounts or
concessions of any brokers or dealers and will indemnify the Holders of the
Notes (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
--------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Registered Exchange Offer
prospectus below the Table of Contents.
30
ANNEX D
[ ] 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
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Senior Subordinated Notes 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 Notes; 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.
31
ANNEX E
None
