Exhibit 10.2
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EXECUTION COPY
RITE AID CORPORATION
$300,000,000 9 1/2% Senior Secured Notes due 2011
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
February 12, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston LLC
Fleet Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rite Aid Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell, upon the terms set forth in a purchase agreement
dated February 5, 2003 (the "Purchase Agreement"), to the initial purchasers
set forth in the Purchase Agreement (the "Initial Purchasers"), $300,000,000
aggregate principal amount of its 9 1/2% Senior Secured Notes due 2011 (the
"Securities") relating to the initial placement of the Securities (the
"Initial Placement"). Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, and as satisfaction of the conditions thereunder, the Company and
each of the subsidiaries of the Company listed on the signature pages hereto
(the "Subsidiary Guarantors"), agree, jointly and severally, with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) and the Exchange Securities (as defined
herein) (each a "Holder" and collectively, the "Holders"), as follows:
1. Registered Exchange Offer. Unless the Registered Exchange Offer
(as defined herein) shall not be permitted by applicable law or applicable
interpretation of the staff of the Securities and Exchange Commission (the
"SEC" or "Commission"), the Company and the Subsidiary Guarantors shall (i)
prepare and, not later than 90 days
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following the date of the original issuance of the Securities (the
date of such filing being referred to herein as the "Filing Date"), file with
the Commission a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with respect to a
proposed offer to the Holders of the Securities (the "Registered Exchange
Offer") to issue and deliver to such Holders, in exchange for the Securities a
like aggregate principal amount of secured debt securities of the Company
(including the guarantees thereof by the Subsidiary Guarantors, the "Exchange
Securities") that are identical in all material respects to, and secured on a
pari passu basis by the same collateral as, the Securities, except for the
transfer restrictions relating to the Securities, (ii) use their best efforts
to cause the Exchange Offer Registration Statement to become effective under
the Securities Act no later than 180 days after the Filing Date and (iii) as
soon as practicable after the effectiveness of the Exchange Offer Registration
Statement, initiate the Registered Exchange Offer as set forth in the
following paragraph. The Exchange Securities will be issued under the same
indenture as the Securities (the "Indenture") dated as of February 12, 2003,
among the Company, the Subsidiary Guarantors and the Trustee or such other
bank or trust company that is reasonably satisfactory to the Initial
Purchasers, as trustee (the "Trustee"), with such modifications as may be
appropriate to account for the registration of the Exchange Securities under
the Securities Act.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Subsidiary Guarantors shall commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company or an
Exchanging Dealer (as defined herein) not complying with the requirements of
the next sentence, (b) is not holding Securities that have, or that are
reasonably likely to have, the status of an unsold allotment in the Initial
Placement, (c) acquires the Exchange Securities in the ordinary course of such
Holder's business and (d) has no arrangements or understandings with any
person to participate, and is not participating, in the distribution of the
Exchange Securities) and to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States. The Company, the Subsidiary Guarantors, the
Holders and each Exchanging Dealer acknowledge that, pursuant to current
interpretations
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by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a Broker-Dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required, in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer, to deliver a
prospectus containing substantially the information set forth (i) in Annex A
hereto on the cover of such prospectus, (ii) in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section of such prospectus and (iii) in Annex C hereto in the "Plan of
Distribution" section of such prospectus, in each case subject to any changes,
additions, deletions or moving of such disclosure required by the SEC.
In connection with the Registered Exchange Offer, the Company on
behalf of itself and the Subsidiary Guarantors shall:
(a) mail to each Holder of Securities a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
and not more than 45 business days (or, in each case, longer, if required by
applicable law) after the date on which notice of the Registered Exchange
Offer is mailed to the Holders of Securities and the Purchasers;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the end of the Registered Exchange Offer, as set forth in the materials
originally mailed to Holders of Securities or otherwise extended by the
Company;
(e) comply with all requests of the Securities and Exchange
Commission in order to consummate the Registered Exchange Offer; and
(f) comply in all respects with all laws that are applicable to the
Registered Exchange Offer.
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As soon as practicable after the close of the Registered Exchange
Offer, the Company on behalf of itself and the Subsidiary Guarantors shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for due cancelation all Securities so
accepted for exchange; and
(c) cause the Trustee for the Exchange Securities promptly to
authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the Securities of such Holder so accepted for exchange.
The Company and the Subsidiary Guarantors shall use their best
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons
must comply with such requirements in order to resell the Exchange Securities;
provided that (i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer, such period
shall be the earlier of one year from the close of the Registered Exchange
Offer and the date on which all Exchanging Dealers have sold all Exchange
Securities held by them and (ii) the Company shall make such prospectus and
any amendment or supplement thereto available to any Broker-Dealer for use in
connection with any resale of any Exchange Securities for a period of not less
than 90 days after the consummation of the Registered Exchange Offer.
Notwithstanding the foregoing, during any 365-day period, the Company
and the Subsidiary Guarantors may suspend the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement for up to 2
periods (each a "Suspension Period") of up to 45 consecutive days (except for
the consecutive 45-day period immediately prior to maturity of the
Securities), but no more than an aggregate of 75 days during any 365-day
period, if there is a possible acquisition or business combination or other
transaction, business development or event involving the Company that may
require disclosure in the Exchange Offer Registration Statement or the Shelf
Registration Statement and the Company determines in the exercise of its
reasonable judgment that such disclosure is not in the best interests of the
Company and its stockholders or obtaining any
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financial statements relating to an acquisition or business combination
required to be included in the Exchange Offer Registration Statement or the
Shelf Registration Statement would be impracticable. In such a case, the
Company shall promptly notify any such Broker-Dealers of the suspension of the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, provided that such notice shall
not require the Company to disclose the possible acquisition or business
combination or other transaction, business development or event if the Company
determines in good faith that such acquisition or business combination or
other transaction, business development or event should remain confidential.
Upon the abandonment, consummation or termination of the possible acquisition
or business combination or other transaction, business development or event or
the availability of the required financial statements with respect to a
possible acquisition or business combination, the suspension of the use of the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, pursuant to this paragraph shall cease and the Company shall
promptly notify such Broker-Dealers that the use of the prospectus contained
in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, as amended or supplemented, as applicable, may
resume. The Company shall provide sufficient copies of the latest version of
such prospectus to such Broker-Dealers, promptly upon written request, and in
no event later than one Business Day after such request, at any time during
such period.
The Indenture shall provide that the Securities and the Exchange
Securities shall vote and consent together on all matters as to which the
Indenture provides for voting and consent as one class and that neither the
Securities nor the Exchange Securities will have the right to vote or consent
as a separate class on any matter.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which
interest was paid on the Securities surrendered in exchange therefor or, if no
interest has been paid on the Securities, from the date of the closing of the
Exchange Offer.
Each Holder hereby acknowledges and agrees that any such Holder using
the Registered Exchange Offer to participate in a distribution of the Exchange
Securities (x) could not under Commission policy as in effect on the date of
this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and
Co., Inc. (pub. avail.
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June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993 and similar no-action letters, and (y) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction which must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under the Securities Act if the resales are of Exchange Securities obtained by
such Holder in exchange for Securities acquired by such Holder directly from
the Company or one of its affiliates. Accordingly, each Holder participating
in the Registered Exchange Offer shall be required to represent to the Company
that at the time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the ordinary
course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate, and is not participating, in the
distribution of the Securities or the Exchange Securities within the meaning
of the Securities Act, (iii) such Holder is not an affiliate of the Company
or, if it is such an affiliate (as defined in Section 10(e)), such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) it is not acting on behalf of
any person who, to its knowledge, could not truthfully make the foregoing
representations and (v) it shall have made such other representations as may
be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or another appropriate form
under the Securities Act available or for the Exchange Offer Registration
Statement to be declared effective. To the extent permitted by law, upon the
written request of the Initial Purchasers, the Company shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Securities in the
Exchange Offer.
Notwithstanding any other provisions hereof, the Company and the
Subsidiary Guarantors will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming part thereof
and any supplement thereto shall comply in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder,
(ii) any Exchange Offer Registration Statement and any amendment thereto shall
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated
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therein or necessary to make the statements therein not misleading and (iii)
any prospectus forming part of any Exchange Offer Registration Statement, and
any supplement to such prospectus, shall not, as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the written
request of such Initial Purchaser, the Company and the Subsidiary Guarantors
shall issue and deliver to such Initial Purchaser or the person purchasing
Exchange Securities registered under a Shelf Registration Statement (as
contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for
such Securities, a like principal amount of Exchange Securities. The Company
shall use its best efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for such Exchange Securities as for Exchange Securities issued
pursuant to the Registered Exchange Offer.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is
not permitted to effect the Registered Exchange Offer as contemplated by
Section 1 hereof, (ii) the Exchange Offer Registration Statement is not
declared effective within 180 days after the original issuance of the
Securities or the Registered Exchange Offer is not consummated within 210 days
after the original issuance of the Securities, (iii) a Holder (including an
Initial Purchaser) of Securities notifies the Company following the completion
of the Registered Exchange Offer that the Securities held by such Holder are
not eligible to be exchanged for Exchange Securities in the Registered
Exchange Offer, (iv) certain Holders (other than the Initial Purchasers) of
the Securities are prohibited by law or the policy of the Commission from
participating in the Registered Exchange Offer or the Exchange Securities may
not be freely transferable by such Holders other than by reason of such Holder
being an affiliate of the Company (it being understood that the requirement
that a participating Broker-Dealer deliver the prospectus contained in the
Exchange Offer Registration Statement in connection with sales of Exchange
Securities shall not result in such Exchange Securities being not "freely
transferable"), or (v) in the case of any Initial Purchaser that participates
in the Registered Exchange Offer or acquires Exchange Securities pursuant to
Section 1(d) hereof, such Initial Purchaser does
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not receive freely tradeable Exchange Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that (x)
the requirement that an Initial Purchaser deliver a prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Securities
Act in connection with sales of Exchange Securities acquired in exchange for
such Securities shall not result in such Exchange Securities not being "freely
transferable" and (y) the requirement that an Exchanging Dealer deliver a
prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely transferable"), then the following
provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall promptly file
(but in no event more than 30 days after so required or requested pursuant to
this Section 2) with the Commission, and thereafter shall use their reasonable
best efforts to cause to be declared effective, a shelf registration statement
on an appropriate form under the Securities Act relating to the offer and sale
of the Transfer Restricted Securities (as defined herein) by the Holders
thereof from time to time in accordance with the methods of distribution set
forth in such registration statement (hereafter, a "Shelf Registration
Statement" and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) Subject to any Suspension Periods provided for in Section 1, the
Company and the Subsidiary Guarantors shall keep the Shelf Registration
Statement continuously effective, supplemented and amended, or shall file
additional registration statements, as required by the Securities Act, in
order to permit the prospectus forming part thereof to be used by Holders of
Transfer Restricted Securities for a period ending on the earlier of (i) two
years from the effective date of the Shelf Registration Statement or such
shorter period that will terminate when all the Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold pursuant thereto,
(ii) the date the Transfer Restricted Securities cease to be outstanding and
(ii) the date on which the Securities become eligible for resale without
volume restrictions pursuant to Rule 144 under the Securities Act (in any such
case, such period being called the "Shelf Registration Period"). The Company
and the Subsidiary Guarantors shall be deemed not to have complied with this
paragraph (b) if any of them voluntarily takes any action that would result in
Holders of
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Transfer Restricted Securities covered thereby not being able to offer and
sell such Transfer Restricted Securities during that period, unless such
action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company and the
Subsidiary Guarantors shall ensure that (i) any Shelf Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder, (ii) any Shelf
Registration Statement and any amendment thereto (in either case, other than
with respect to information included therein in reliance upon or in conformity
with written information furnished to the Company by or on behalf of any
Holder specifically for use therein (the "Holders' Information")) does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders' Information),
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
3. Additional Interest. (a) If (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement, as the case may
be, is filed with the Commission on or prior to the date which is 90 days
following the date of the original issuance of the Securities, (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is not declared effective within 180 days after the original
issuance of the Securities, (iii) the Exchange Offer Registration Statement is
declared effective, the Registered Exchange Offer is not consummated on or
prior to 210 days after the date of the original issuance of Securities, (iv)
the Company and the Subsidiary Guarantors are required to file the Shelf
Registration Statement in accordance with Section 2, the Company or any
Subsidiary Guarantor does not so file the Shelf Registration Statement on or
prior to the 30th day after the Company's obligation to file such Shelf
Registration Statement arises, (v) the applicable Registration Statement is
filed and declared effective but shall thereafter cease to be effective (at
any time that the Company and the Subsidiary Guarantors are obligated to
maintain the effectiveness thereof) without being again
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effective within 30 days or being succeeded within 30 days by an additional
Registration Statement filed and declared effective, provided that such 30-day
period shall toll during a Suspension Period, or (vi) any Suspension Periods
exceed, in the aggregate, 75 days during any 365-day period (each such event
referred to in clauses (i) through (vi), a "Registration Default"), the
Company shall be obligated to pay additional interest ("Additional Interest")
to each Holder of Transfer Restricted Securities, during the period of one or
more such Registration Defaults, at a rate of 0.25% per annum on the
applicable principal amount of Transfer Restricted Securities held by such
Holder for the first 90-day period immediately following the occurrence of a
Registration Default, and such rate will increase by an additional 0.25% with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, provided that the maximum additional rate may in no event exceed
0.50% per annum. Such obligation to pay Additional Interest shall survive
until (i) the applicable Registration Statement is filed, (ii) the Exchange
Offer Registration Statement is declared effective and the Registered Exchange
Offer is consummated with respect to all properly tendered Securities, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective (or is superseded by another
effective Shelf Registration Statement), as the case may be. Following the
cure of all Registration Defaults, the accrual of Additional Interest will
cease.
As used herein, the term "Transfer Restricted Securities" means (i)
each Security until the date on which such Security has been exchanged for a
freely transferable Exchange Security in the Registered Exchange Offer, (ii)
each Security until the date on which it has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) each Security until the date on which it is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act. Notwithstanding anything to
the contrary in this Section 3(a), the Company shall not be required to pay
Additional Interest to a Holder of Transfer Restricted Securities if such
Holder failed to comply with its obligations to make the representations set
forth in the third to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the paying agent under
the Indenture immediately upon the happening of each and every Registration
Default. The
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Company shall pay the Additional Interest due on the Transfer Restricted
Securities by depositing with the paying agent (which may not be the Company
for these purposes), in trust, for the benefit of the Holders thereof, prior
to 10:00 a.m., New York City time, on the next applicable interest payment
date specified by the Indenture and the Securities, sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each applicable interest payment date specified by the Indenture and the
Securities to the record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay Additional Interest shall be deemed
to accrue from and include the date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this
Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company on behalf of itself and the Subsidiary Guarantors
shall (i) furnish to each of the Representatives for the Initial Purchasers a
copy of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall use its
reasonable best efforts to reflect in each such document, when so filed with
the Commission, such comments as any Initial Purchaser or any Holder may
reasonably propose; (ii) include the information set forth (A) in Annex A
hereto on the cover of such prospectus, (B) in Annex B hereto in the "Exchange
Offer Procedures" section and the "Purpose of the Exchange Offer" section of
such prospectus, (C) in Annex C hereto in the "Plan of Distribution" section
of the prospectus forming a part of the Exchange Offer Registration Statement
and (D) in Annex D hereto in any Letter of Transmittal delivered pursuant to
the Registered Exchange Offer, in each case subject to any changes, additions,
deletions or moving of such disclosure required by the SEC; and (iii) if
requested by an Initial
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Purchaser, include the information required by Items 507 or 508 of Regulation
S-K, as applicable, in the prospectus forming part of the Exchange Offer
Registration Statement.
(b) The Company on behalf of itself and the Subsidiary Guarantors
shall advise each of the Representatives for the Initial Purchasers, each
Exchanging Dealer and the Holders (if applicable) and, if requested by any
such person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
(iii) if known by the Company, of the issuance by the Commission of
any stop order suspending the effectiveness of any Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company and the Subsidiary Guarantors shall make every
reasonable effort to obtain the withdrawal at the earliest possible time of
any order suspending the effectiveness of any Registration Statement or
qualifying the Securities therein for sale in any jurisdiction.
(d) The Company on behalf of itself and the Subsidiary Guarantors
shall furnish to each Holder of Transfer Restricted Securities included within
the coverage of any Shelf Registration Statement, without charge, upon the
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written request of such Holder, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all
material incorporated therein by reference, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company on behalf of itself and the Subsidiary Guarantors
shall, during the Shelf Registration Period, promptly deliver to each Holder
of Transfer Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company and the Subsidiary Guarantors consent to
the use of such prospectus or any amendment or supplement thereto by each of
the selling Holders of Transfer Restricted Securities in connection with the
offer and sale of the Transfer Restricted Securities covered by such
prospectus or any amendment or supplement thereto.
(f) The Company on behalf of itself and the Subsidiary Guarantors
shall furnish to each Exchanging Dealer who so requests in writing, without
charge, at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any Exchanging Dealer so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(g) The Company on behalf of itself and the Subsidiary Guarantors
shall, during the Exchange Offer Registration Period or the Shelf Registration
Period, as applicable, promptly deliver to each Initial Purchaser, each
Exchanging Dealer and such other persons that are required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Initial Purchaser, Exchanging Dealer or other persons may
reasonably request; and the Company and the Subsidiary Guarantors consent to
the use of such prospectus or any amendment or supplement thereto by any such
Initial Purchaser, Exchanging Dealer or other persons, as applicable, as
aforesaid.
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(h) Prior to the effective date of any Registration Statement, the
Company and the Subsidiary Guarantors shall use their reasonable best efforts
to register or qualify, or cooperate with the Holders of Securities or
Exchange Securities included therein and their respective counsel in
connection with the registration or qualification of, such Securities or
Exchange Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as any such Holder reasonably requests in writing and do
any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Securities or Exchange Securities
covered by such Registration Statement, provided that neither the Company nor
any Subsidiary Guarantor shall be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of Securities or
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders thereof may
request in writing at least one business day prior to sales of Securities or
Exchange Securities pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company is required to maintain an effective
Registration Statement, the Company and the Subsidiary Guarantors shall
promptly prepare and file with the Commission a post-effective amendment to
the Registration Statement or an amendment or a supplement to the related
prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities or Exchange Securities from a
Holder, the prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In such circumstances, the period of effectiveness of the Exchange
Offer Registration Statement provided for in Section 1 and the Shelf
Registration Statement provided for in Section 2(b) shall each be extended by
the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(b) to and including the date when the Initial
Purchasers, the Holders of the Securities and any known
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Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(k) Not later than the effective date of the applicable Registration
Statement, the Company shall obtain a CUSIP number for the Securities and the
Exchange Securities and provide the applicable trustee with printed
certificates for the Securities or the Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Subsidiary Guarantors shall comply with all
applicable rules and regulations of the Commission and make generally
available to the Company's security holders as soon as reasonably practicable
after the effective date of the applicable Registration Statement an earning
statement satisfying the provisions of Section 11(a) of the Securities Act,
provided that in no event shall such earning statement be delivered later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the applicable Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the Subsidiary Guarantors shall cause the
Indenture to be qualified under the Trust Indenture Act as required by
applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from
time to time reasonably require for inclusion in such Shelf Registration
Statement, and the Company and the Subsidiary Guarantors may exclude from such
registration the Transfer Restricted Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v), such Holder
will discontinue disposition of such Transfer Restricted Securities until such
Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) or until advised in writing
15
(the "Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall give any notice under Section 4(b)(ii) through
(v) during the period that the Company is required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each
seller of Transfer Restricted Securities covered by such Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and
the Subsidiary Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority in aggregate
principal amount of the Securities or Exchange Securities being sold or the
managing underwriters, if any, shall reasonably request in order to facilitate
any disposition of Securities or Exchange Securities pursuant to such Shelf
Registration Statement.
(q) In the case of any Shelf Registration Statement, the Company and
the Subsidiary Guarantors, as applicable, shall:
(i) make reasonably available for inspection by the Holders of,
representatives and counsel to, a majority in aggregate principal
amount of the Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by
such Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's and the Subsidiary Guarantors'
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due diligence
examinations; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by Xxxxxxx Xxxxx Xxxxxx Inc. in connection with any
16
underwritten Shelf Registration Statement to which it is a party, and
on behalf of the Holders by one counsel designated by the Holders of
a majority of the Securities; provided, further, that any information
provided pursuant to Section 4(q)(i) and (ii) that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent, and
shall be used only in connection with such Shelf Registration and the
transactions contemplated thereby unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in
the Purchase Agreement;
(iv) obtain opinions of its counsel and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) if requested in writing by Holders of a majority in
aggregate principal amount of the Securities to be registered
thereunder or by any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, to use its reasonable
best efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company,
addressed to each selling Holder of Securities registered thereunder
and the underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being
sold and
17
the underwriters, if any, and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company and the Subsidiary Guarantors.
The actions set forth in clauses (iii), (iv) and (v) of this subsection shall
be performed at (A) the effectiveness of such Registration Statement and, if
applicable, each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required
thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person
as directed by the Company) in exchange for the Exchange Securities, the
Company shall xxxx, or cause to be marked, on the Securities so exchanged that
such Securities are being canceled in exchange for the Exchange Securities. In
no event shall the Securities be marked as paid or otherwise satisfied.
(s) The Company will use its reasonable best efforts to cause the
Securities covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by Holders of
a majority in aggregate principal amount of the Securities and the Exchange
Securities being sold with respect to the related Registration Statement or by
any underwriters.
(t) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company and the Subsidiary Guarantors shall assist such
Broker-Dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten offering
18
or is made through a placement or sales agent, to recommend the
yield of such Securities;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section
6 hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
5. Registration Expenses. The Company and the Subsidiary Guarantors
shall bear all expenses incurred in connection with the performance of their
obligations under Sections 1, 2, 3 and 4 and, in the case of a Shelf
Registration Statement, the Company and the Subsidiary Guarantors shall
reimburse the Holders for the reasonable fees and disbursements of one firm of
attorneys (in addition to any local counsel) chosen by the Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities to be sold pursuant to each Registration Statement acting for the
Holders and the Initial Purchasers in connection therewith and, in the case of
any Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of counsel acting in
connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an
Exchange Offer Registration Statement by an Exchanging Dealer, the Company and
the Subsidiary Guarantors shall, jointly and severally, indemnify and hold
harmless each Holder (including, without limitation, each Initial Purchaser
and any such Exchanging Dealer), their affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls such Holder within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 6 and Section 7 as
a Holder), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities or Exchange Securities), to which that Holder may become subject,
whether commenced or threatened, under the Securities Act, the Exchange Act,
any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in any such Registration Statement or any
19
prospectus forming part thereof or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and shall reimburse each indemnified party promptly upon demand
for any legal or other expenses reasonably incurred by that indemnified party
in connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Subsidiary Guarantors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any Holders' Information; and provided
further, however, that with respect to any such untrue statement in or
omission from any related preliminary prospectus, the indemnity agreement
contained in this Section 6(a) shall not inure to the benefit of any Holder
from whom the person asserting any such loss, claim, damage, liability or
action received Securities or Exchange Securities to the extent that such
loss, claim, damage, liability or action of or with respect to such Holder
results from the fact that both (A) a copy of the final prospectus was not
sent or given to such person at or prior to the written confirmation of the
sale of such Securities or Exchange Securities to such person and (B) the
untrue statement in or omission from the related preliminary prospectus was
corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Company
with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
severally and not jointly shall indemnify and hold harmless the Company, the
Subsidiary Guarantors, their affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls
the Company or any such Subsidiary Guarantor, as the case may be, within the
meaning of the Securities Act or the Exchange Act (collectively referred to
for purposes of this Section 6(b) and Section 7 as the Company), from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such Subsidiary Guarantor, as
the case may be, may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or
20
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming a part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Holders'
Information furnished to the Company by such Holder, and shall reimburse the
Company or such Subsidiary Guarantor, as the case may be, for any legal or
other expenses reasonably incurred by the Company, in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that no such
Holder shall be liable for any indemnity claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have under this Section 6 except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further,
however, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
21
Section 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation; provided, however, that an indemnified
party shall have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel for the indemnified party
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in addition to any local
counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party
22
from all liability or claims that were raised or could have been raised by
such plaintiff in such proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the indemnified
party, on the one hand, and the indemnifying party, on the other hand, from
the Initial Placement and the Registration Statement which resulted in such
loss, claim, damage or liability, or action in respect thereof, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Subsidiary Guarantors on the one hand and such Holder, on the other, with
respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the Initial Placement
(before deducting expenses) received by the Company, and benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions in each case set forth on the cover of the Final
Memorandum. Benefits received by any other Holders shall be deemed to be equal
to the value of receiving Securities or Exchange Securities, as applicable,
registered under the Securities Act. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to the Company and the Subsidiary Guarantors or
information supplied by the Company and the Subsidiary Guarantors on the one
hand or to any Holder or information supplied by such Holder on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 7 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall
23
be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that
is a Holder of Securities or Exchange Securities shall not be required to
contribute any amount in excess of the amount by which (A) with respect to any
Holder, the total price at which the Securities or Exchange Securities sold by
such indemnifying party to any purchaser, (B) with respect to a Purchaser, the
total consideration received by such Purchaser pursuant to the Purchase
Agreement, as the case may be, exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. So long as Transfer Restricted Securities
remain outstanding, the Company and the Subsidiary Guarantors shall use their
reasonable best efforts to file the reports required to be filed by it under
the Securities Act and the Exchange Act in a timely manner and, if at any time
the Company is not required to file such reports, it and the Subsidiary
Guarantors will, upon the written request of any Holder of Transfer Restricted
Securities, make publicly available other information so long as necessary to
permit sales of such Holder's securities pursuant to Rules 144 and 144A. So
long as Transfer Restricted Securities remain outstanding, the Company and the
Subsidiary Guarantors covenant that after February 12, 2003 they will take
such further action as any Holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rules
144 and 144A (including, without limitation, the requirements of Rule
144A(d)(4)). So long as Transfer Restricted Securities remain outstanding,
upon the written request of any Holder of Transfer Restricted Securities, the
Company shall deliver to such Holder a written statement as to whether it and
the Subsidiary Guarantors have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company or any Subsidiary Guarantor to register any of its
securities pursuant to the Exchange Act.
24
9. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall
be responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities; provided that,
with respect to any matter that directly or indirectly affects the rights of
any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. The Company may consent to
any amendment or waiver of this Agreement on behalf of the Subsidiary
Guarantors. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or Exchange Securities, as the case may be,
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities being sold by such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be
25
made in writing by hand-delivery, first-class mail, telecopier or any courier
guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b), which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Company or any Subsidiary Guarantor, initially at the
address of the Company set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the Exchange Securities.
The Company and the Subsidiary Guarantors hereby agree to extend the benefits
of this Agreement to any Holder of Securities and the Exchange Securities, and
any such Holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act, (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the
Securities Act, (d) the term "Broker-Dealer" shall mean any broker or dealer
registered as such under the Exchange Act, (e) the term "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended,
26
and the rules and regulations of the Commission promulgated thereunder, (f)
the term "Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder, (g)
the term "Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, and (h) the term
"Shelf Registration" shall mean a registration effected pursuant to Section 2
hereof.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
(h) No Inconsistent Agreements. Neither the Company nor any
Subsidiary Guarantor has entered into, or shall, on or after the date of this
Agreement, enter into any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ
an alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or
Exchange Securities, as applicable, held by the Company or its
27
Affiliates shall be disregarded and deemed not to be outstanding in
determining whether such consent or approval was given by the Holders of such
required percentage.
28
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Initial Purchasers.
Very truly yours,
RITE AID CORPORATION,
By
------------------------
Name:
Title:
EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON
SCHEDULE A HERETO,
By
------------------------
Name:
Title:
Accepted:
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston LLC
Fleet Securities, Inc.
By: Xxxxxxx Xxxxx Barney Inc.
By
--------------------------------
Name:
Title:
For themselves and the other several
Initial Purchasers named in Schedule I
to the Purchase Agreement.
29
SCHEDULE A
Subsidiary Guarantors
Corporations
Thrifty PayLess, Inc.
Rite Aid of Vermont, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Maine, Inc.
Rite Aid of West Virginia, Inc.
The Lane Drug Company
0000 Xxxxxxx Xxxx - Xxxxxxxx Inc.
0000 Xxxxxx Xxxx Xxxx - Xxxxxxxxxx Corp.
0000 Xxxxxxxxxxxx Xxxxxx Xxxx - Xxxxxxxxxxxx Xxxx, Inc.
5277 Associates, Inc.
000 Xxx Xxxxxx Xxxx.
0000 Superior Properties, Inc.
000-000 Xxxxx Xx. Xxxx.
Xxxx Drug Stores, Inc.
Broadview and Wallings - Broadview Heights Ohio, Inc.
Dominion Action Four Corporation
Dominion Action One Corporation
Dominion Action Three Corporation
Dominion Action Two Corporation
Dominion Drug Stores Corp.
Drug Fair of PA, Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
England Street-Asheland Corporation
GDF, Inc.
Harco, Inc.
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Inc.
K&B Tennessee Corporation
K&B Texas Corporation
K&B, Incorporated
Keystone Centers, Inc.
Lakehurst and Broadway Corporation
Ocean Acquisition Corporation
P.L.D. Enterprises, Inc.
Xxxxxx Drive and Navy Boulevard Property Corporation
PDS-1 Michigan, Inc.
Perry Distributors, Inc.
Perry Drug Stores, Inc.
PL Xpress, Inc.
Portfolio Medical Services Inc.
Rack Rite Distributors, Inc.
Ram-Utica, Inc.
RDS Detroit, Inc.
Read's Inc.
Rite Aid Drug Palace, Inc.
Rite Aid Hdqtrs. Corp
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Pennsylvania, Inc.
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid Realty Corp.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
Rite Investments Corp.
Rx Choice, Inc.
Sophie One Corp.
Super Ice Cream Suppliers, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc.
The Xxxx Company
Thrifty Corporation
Virginia Corporation
W.R.A.C., Inc.
Limited Liability Companies
000 Xxxxx Xxxxxxxx - Xxxxxx, Xxxx, LLC
Eighth and Water Streets - Urichsville, Ohio, LLC
Gettysburg and Xxxxxx-Dayton, Ohio, LLC
Xxxxxxxx & Chillicothe Roads - Chesterland, LLC
Xxxxxx & Xxxxxxx, LLC
Silver Springs Road - Baltimore, Maryland/One, LLC
Silver Springs Road - Baltimore, Maryland/Two, LLC
Xxxxx Xxxxxx xxx Xxxx Xxxx-Xxxxxx, Xxxx, LLC
000 Xxxxxxxx Xxxxxx Xxxxxxx, LLC
0000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx, LLC
1740 Associates, L.L.C.
Xxx & Government Streets - Mobile, Alabama, LLC
Baltimore/Annapolis Boulevard and Governor Richie Highway - Glen Burnie,
Maryland, LLC
Xxxxxxx Xxxxxx xxx Xxxx Xxxxxx - Xxxxx, XX, LLC
Fairground, L.L.C.
Gratiot & Center - Saginaw Township, Michigan, LLC
Name Rite, L.L.C.
Northline & Xxx - Xxxxxx - Southgate, LLC
Paw Paw Lake Road & Paw Paw Avenue - Coloma, Michigan, LLC
Seven Mile and Evergreen - Detroit, LLC
State & Fortification Streets - Jackson, Mississippi, LLC
Tyler and Xxxxxxx Roads, Birmingham - Alabama, LLC
Rite Aid Services, L.L.C.
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. This prospectus,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date (as
defined herein) and ending on the close of business 180 days after the
Expiration Date, it will make this prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company on behalf of itself and the Subsidiary Guarantors has agreed that,
starting on the Expiration Date (as defined herein) and ending on the close of
business 180 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until _______________, 200__, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Registered Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to
the Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date the Company and
the Subsidiary Guarantors will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company and the Subsidiary Guarantors have agreed to pay all expenses incident
to the Registered Exchange Offer (including the expenses of one counsel for
the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
