Exhibit 4.2
IRON AGE HOLDINGS CORPORATION
$45,140,000
12 1/8% Senior Discount Notes Due 2009
REGISTRATION AGREEMENT
New York, New York
April 24, 1998
Salomon Brothers Inc
SBC Warburg Dillon Read Inc.
Banque Nationale de Paris
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Iron Age Holdings Corporation, a Delaware corporation ("Holdings"),
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proposes to issue and sell to the purchasers listed above (the "Initial
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Purchasers"), upon the terms set forth in a purchase agreement of even date
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herewith (the "Purchase Agreement"), $45,140,000 in aggregate principal amount
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at maturity of its 12 1/8% Senior Discount Notes due 2009 (the "Discount Notes")
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(the "Initial Placement"). As an inducement to the Initial Purchasers to enter
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into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, Holdings agrees with the Initial Purchasers, for the
benefit of (i) the Initial Purchasers, (ii) the holders from time to time
- --
(including the Initial Purchasers) of the Discount Notes and (iii) the holders
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from time to time (including the Initial Purchasers) of the Exchange Notes (as
defined below) (in cases (ii) and (iii) collectively, the "Holders"), as
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follows:
1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement,
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the following capitalized defined terms shall have the following meanings:
"Accreted Value" means, with respect to any Discount Note, as of a
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date of determination: (i) prior to May 1, 2003, the sum of (x) the initial
- -
offering price of such Discount Note and (y) the portion of the excess of the
-
principal amount of such Discount Note over such initial offering price which
shall have been accreted thereon through such date, such amount to be so
accreted on a daily basis at a rate per annum of 12 1/8% of the initial offering
price of such Discount Note, computed on the basis of a 360-day year of twelve
30-day months from the Issue Date through the date of determination, compounded
semi-annually on each May 1 and November 1, commencing November 1, 1998; (ii) on
--
or after May 1, 2003, 100% of the principal amount thereof.
"Affiliate" of any specified person means any other person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Discount Notes" has the meaning set forth in the preamble hereto.
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"Exchange Notes" means debt securities of Holdings identical in all
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material respects to the Discount Notes (except that the transfer restrictions
relating to the Discount Notes shall be eliminated), to be issued under the
Indenture or the Exchange Notes Indenture and that would be registered under the
Securities Act.
"Exchange Notes Indenture" means an indenture between Holdings and the
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Exchange Notes Trustee, identical in all material respects with the Indenture
(except that the
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transfer restrictions relating to the Discount Notes shall be eliminated).
"Exchange Notes Trustee" means a bank or trust company reasonably
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satisfactory to Holdings and the Initial Purchasers, as trustee with respect to
the Exchange Notes under the Exchange Notes Indenture.
"Exchange Offer" means the proposed offer to the Holders of Transfer
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Restricted Securities to issue and deliver to such Holders, in exchange for such
Transfer Restricted Securities, a like principal amount at maturity of the
Exchange Notes.
"Exchange Offer Registration Period" means the period set forth in
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Section 2(c)(ii) hereof.
"Exchange Offer Registration Statement" means a registration statement
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of Holdings on an appropriate form under the Securities Act with respect to the
Exchange Offer, all amendments and supplements to such registration state
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchanging Dealer" means any Holder (which may be an Initial
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Purchaser) which is a broker-dealer, electing to exchange Discount Notes
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Notes.
"Holders" has the meaning set forth in the preamble hereto.
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"Holders' Information" means any information included in any
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Registration Statement in reliance upon or in conformity with written
information furnished to Holdings by or on behalf of any Holder specifically for
use therein.
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"Holdings" has the meaning set forth in the preamble hereto.
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"Indenture" means the Indenture relating to the Discount Notes, dated
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as of April 24, 1998, between Holdings and The Chase Manhattan Bank, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
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"Issue Date" means the date on which the Discount Notes are originally
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issued.
"Liquidated Damages" has the meaning set forth in Section 7(a) hereof.
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"Losses" has the meaning set forth in Section 6(d) hereof.
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"Majority Holders" means the holders of a majority of the aggregate
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principal amount at maturity of Discount Notes registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Discount Notes or the Exchange Notes,
covered by such Registration Statement, and all amendments and supplements to
the Prospectus, including post-effective
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amendments, and all material incorporated by reference therein.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
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"Registration Default" has the meaning set forth in Section 7 hereof.
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"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Discount Notes
or the Exchange Notes pursuant to the provisions of this Agreement, amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of Holdings pursuant to the pro visions of Section 3 hereof which covers some
or all of the Discount Notes or Exchange Notes, as applicable, on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the SEC, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Transfer Restricted Security" means each Discount Note until (i) the
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date on which such Discount Note has been exchanged for a freely transferable
Exchange Note in the Exchange Offer, (ii) the date on which such Discount Note
--
has been effectively registered under the Securities Act and
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disposed of in accordance with a Shelf Registration Statement or (iii) the date
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on which such Discount Note 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.
"Trustee" means the trustee with respect to the Discount Notes under
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the Indenture.
"underwriter" means any underwriter of Discount Notes in connection
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with an offering thereof under a Shelf Registration Statement.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
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Private Exchange. (a) Holdings shall (i) prepare and, on or prior to 90 days
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after the Issue Date, shall file with the SEC the Exchange Offer Registration
Statement with respect to the Exchange Offer under the Securities Act and (ii)
--
use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or prior to 150
days after the Issue Date.
(b) As promptly as practicable after the Exchange Offer Registration
Statement is declared effective by the SEC but in any event on or prior to 180
days after the Issue Date, Holdings shall offer to holders of Transfer
Restricted Securities who are not prohibited by any law or policy of the SEC
from participating in the Exchange Offer the opportunity to exchange their
Transfer Restricted Securities for Exchange Notes. For each Discount Note
surrendered to Holdings pursuant to the Exchange Offer, the Holder of such
Discount Note shall receive an Exchange Note having a principal amount at
maturity equal to that of the surrendered Discount Note. Principal on the
Exchange Notes will accrete in the same manner as for the Discount Notes. Cash
interest on each Exchange Note shall accrue from the last cash interest payment
date on which cash interest was paid on the Discount Note surrendered in
exchange thereof
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or, if no interest has been paid on such Discount Note, from May 1, 2003.
(c) In connection with the Exchange Offer, Holdings shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration State ment, together with an appropriate
letter of trans mittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of
the Exchange Offer is mailed to the Holders;
(iii) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all laws that are applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
Holdings shall:
(i) accept for exchange all Discount Notes tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Discount Notes so
accepted for exchange; and
(iii) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Discount Notes
Exchange Notes equal in principal amount at maturity to the Discount Notes
of such Holder so accepted for exchange.
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(e) The Initial Purchasers and Holdings acknowledge that, pursuant to
interpretations by the SEC's staff of Section 5 of the Securities Act, and in
the absence of an applicable exemption therefrom, each Exchanging Dealer is
required to deliver a Prospectus in connection with a sale of any Exchange Notes
received by such Exchanging Dealer pursuant to the Exchange Offer in exchange
for Discount Notes acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, Holdings shall:
(i) include the information set forth in (1) Annex A hereto on the
-
cover of the Exchange Offer Registration Statement, (2) Annex B hereto in
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the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, (3) Annex C hereto in the
-
underwriting or plan of distribution section of the Prospectus forming a
part of the Exchange Offer Registration Statement and (4) Annex D hereto in
-
the letter of transmittal delivered pursuant to the Exchange Offer; and
(ii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Securities Act
during the Exchange Offer Registration Period for delivery by Exchanging
Dealers in connection with sales of Exchange Notes received pursuant to the
Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Exchange Offer with respect to the exchange of
Discount Notes constituting any portion of an unsold allotment, at the request
of such Initial Purchaser, Holdings shall issue and deliver to such Initial
Purchaser or the party purchasing Exchange Notes registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Discount Notes, a like principal amount at
maturity of Exchange
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Notes. Holdings shall use its reasonable best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Exchange Notes as for Exchange
Notes issued pursuant to the Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
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applicable interpretations thereof by the staff of the SEC, Holdings is not
permitted to effect the Exchange Offer as contemplated by Section 2 hereof, (ii)
--
for any other reason the Exchange Offer Registration Statement is not declared
effective on or prior to 150 days after the Issue Date or the Exchange Offer is
not consummated on or prior to 180 days after the Issue Date, (iii) the Initial
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Purchasers so request with respect to Discount Notes not eligible to be
exchanged for Exchange Notes in the Exchange Offer or the Initial Purchasers do
not receive freely tradeable Exchange Notes in the Exchange Offer, (iv) any
--
applicable law or interpretations do not permit any Holder of Discount Notes to
participate in the Exchange Offer, (v) any Holder (other than an Initial
-
Purchaser) of Discount Notes is not eligible to participate in the Exchange
Offer or such Holder does not receive freely tradeable Exchange Notes in the
Exchange Offer other than by reason of such Holder being an affiliate of
Holdings (it being understood that the requirement that a participating broker-
dealer deliver the Prospectus contained in the Exchange Offer Registration
Statement in connection with the sales of Exchange Notes shall not result in
such Exchange Notes being not "freely tradeable") or (vi) Holdings so elects,
--
then the following provisions shall apply:
(a) Holdings shall, at its cost, as promptly as practical, file with
the SEC a Shelf Registration Statement relating to the offer and sale of
Transfer Restricted Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement, and thereafter shall use its
reasonable best efforts after the date of each such filing to cause such
Shelf Registration Statement to be
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declared effective under the Securities Act; provided, however, that with
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respect to Exchange Notes received by an Initial Purchaser in exchange for
Transfer Restricted Securities constituting any portion of an unsold
allotment, Holdings may, if permitted by current interpretations by the
staff of the SEC, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation
S-K Items 507 and/or 508, as applicable, in satisfaction of its obligations
under this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration
Statement.
(b) If applicable, Holdings shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders for a
period of two years after the Issue Date (in any such case, such period
being called the "Shelf Registration Period"). Holdings shall be deemed
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not to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Transfer Restricted Securities
covered thereby not being able to offer and sell such Transfer Restricted
Securities during that period, unless such action (i) is required by
-
applicable law or (ii) is taken by Holdings in good faith and for valid
--
business reasons (not including avoidance of Holdings' obligations
hereunder), including the acquisition or divestiture of assets, so long as
Holdings promptly thereafter complies with the requirements of Section 4(k)
hereof, if applicable.
4. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
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(a) Holdings shall furnish to the Initial Purchasers, prior to the
filing thereof with the SEC, a copy of any Shelf Registration Statement and
any Exchange Offer Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included therein
and shall use its best efforts to reflect in each such document, when so
filed with the SEC, such comments as the Initial Purchasers reasonably may
propose.
(b) Holdings shall ensure that (i) any Registration Statement and
-
any amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) any
--
Registration Statement and any amendment thereto (in either case, other
than with respect to 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
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any Registration Statement, and any amendment or 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, in
light of the circumstances under which they were made, not misleading.
(c) (1) Holdings shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted
Securities covered thereby, and, if requested by the Initial Purchasers or
any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the SEC and
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when such Registration Statement or any post-effective amendment
thereto has become effective; and
(ii) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus included therein or for
additional information (which advice shall be accompanied by an
instruction to suspend the use of such Prospectus until the requisite
changes have been made).
(2) Holdings shall advise the Initial Purchasers and, in the case of
a Shelf Registration Statement, the Holders of Discount Notes covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to Holdings a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing:
(i) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose (which advice shall be accompanied by an
instruction to suspend the use of such Prospectus until the requisite
changes have been made);
(ii) of the receipt by Holdings of any notification with respect
to the suspension of the qualification of the Discount Notes or
Exchange Notes included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose (which
advice shall be accompanied by an instruction to suspend the use of
such Prospectus until the requisite changes have been made); and
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(iii) of the happening of any event that requires the making of
any changes in such Registration Statement or the Prospectus included
therein so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of such Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of such Prospectus until the
requisite changes have been made).
(d) Holdings shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) Holdings shall furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any such Holder so requests in
writing, all exhibits (including those, if any, incorporated by reference).
(f) Holdings shall, during the Shelf Registration Period, 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 Holdings consents 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
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offering and sale of the Transfer Restricted Securities covered by such
Prospectus or any amendment or supplement thereto.
(g) Holdings shall furnish to each Exchanging Dealer which so
requests, without charge, at least one conformed copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by
reference therein, and, if any such Exchange Dealer so requests in writing,
all exhibits (including those, if any, incorporated by reference).
(h) Holdings shall, if required under applicable securities laws,
upon prior written request, make available without charge for a period of
90 days after the consummation of the Exchange Offer as many copies of the
Prospectus included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as any Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a resale
of Exchange Notes received by it pursuant to the Exchange Offer; and
Holdings consents to the use of such Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the effective date of any Registration Statement,
Holdings shall use its reasonable best efforts to register or qualify, or
cooperate with the Holders of Discount Notes or Exchange Notes included
therein and their respective counsel in connection with the registration or
qualification of, such Discount Notes or Exchange Notes 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 Discount Notes or Exchange Notes covered by such
Registration Statement; provided, however, that
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Holdings shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) Holdings shall cooperate with the holders of Discount Notes or
Exchange Notes to facilitate the timely preparation and delivery of
certificates representing Discount Notes or Exchange Notes to be sold
pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the Holders thereof
may request in writing prior to sales of Discount Notes or Exchange Notes
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by Section
4(c)(1)(ii), 4(c)(2)(i), 4(c)(2)(ii) or 4(c)(2)(iii) hereof during the
period in which Holdings is required to maintain an effective Registration
Statement, Holdings shall promptly prepare and file with the SEC a post-
effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered by a Holder to
purchasers of the Discount Notes or Exchange Notes included therein, such
Prospectus shall not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) Not later than the effective date of any Registration Statement,
Holdings shall provide a CUSIP number for the Discount Notes or Exchange
Notes to be sold pursuant to such Registration Statement, and provide the
applicable trustee with printed certificates for such Discount Notes or
Exchange Notes, in a form eligible for deposit with The Depository Trust
Company.
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(m) Holdings shall use its best efforts to comply with all applicable
rules and regulations of the SEC and shall make generally available to its
securityholders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(n) Holdings shall cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) Holdings may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to Holdings such information regarding such Holder and the
distribution of such Transfer Restricted Securities as may be required by
law to be included in such Registration Statement, and Holdings 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.
(p) 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 Holdings pursuant to Section 4(c)(1)(ii), 4(c)(2)(i),
4(c)(2)(ii) or 4(c)(2)(iii),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(k) or
until advised in writing by Holdings that the use of the applicable
Prospectus may be resumed.
(q) In the case of any Shelf Registration Statement, Holdings shall
enter into such customary
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agreements (including, if requested, an underwriting agreement in customary
form) and take such other actions as the Majority Holders or the Managing
Underwriters, if any, shall reasonably request in order to facilitate the
registration or the disposition of Discount Notes or Exchange Notes,
pursuant to such Shelf Registration Statement.
(r) In the case of any Shelf Registration Statement, Holdings shall
(i) make reasonably available for inspection by the Holders of the Discount
-
Notes or Exchange Notes to be sold thereunder, any underwriter
participating in any disposition of Discount Notes or Exchange Notes
pursuant to such Shelf 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 Holdings and its subsidiaries; (ii) use reasonable best
--
efforts to cause Holdings' officers, directors and employees to supply all
relevant information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
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writing by Holdings, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii) make
---
such representations and warranties to the Holders of Discount Notes
registered thereunder and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters, including, but not limited to,
those set forth in the
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Purchase Agreement; (iv) obtain opinions of counsel to Holdings and updates
--
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings;
(v) obtain "cold comfort" letters and updates thereof from the independent
-
certified public accountants of Holdings (and, if necessary, any other
independent certified public accountants of any subsidiary of Holdings or
of any business acquired by Holdings for which financial statements and
financial data are, or are required to be, included in such Shelf
Registration Statement), addressed to each selling Holder of Discount Notes
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 Majority
Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by Holdings. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(r) shall be performed at (A) the effectiveness of such Shelf
-
Registration Statement and each post-effective amendment thereto and (B)
-
each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement,
Holdings shall (i) make reasonably available for inspection by each Initial
-
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of Holdings and its subsidiaries; (ii)
--
use
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reasonable best efforts to cause Holdings' officers, directors and
employees to supply all relevant information reasonably requested by such
Initial Purchaser or any such attorney, accountant or agent in connection
with any such Exchange Offer Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information
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that is designated in writing by Holdings, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by
such Initial Purchaser or any such attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or required
by law, or 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 such
---
Initial Purchaser, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings and covering
matters, including, but not limited to, those set forth in the Purchase
Agreement; (iv) obtain opinions of counsel to Holdings and updates thereof
--
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Initial Purchaser and its counsel)
addressed to such Initial Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings; (v)
-
obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of Holdings (and, if necessary, any other
independent certified public accountants of any subsidiary of Holdings or
of any business acquired by Holdings for which financial statements and
financial data are, or are required to be, included in such Exchange Offer
Registration Statement), addressed to such Initial Purchaser, in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings, or if requested
by such Initial Purchaser or its counsel in
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lieu of a "cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by such
Initial Purchaser or its counsel; and (vi) deliver such documents and
--
certificates as may be reasonably requested by such Initial Purchaser or
its counsel, including those to evidence compliance with Section 4(k) and
with conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(s) shall be performed at the close of the Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
5. Registration Expenses. Holdings shall bear all expenses incurred
---------------------
in connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, shall reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, shall reimburse the Initial Purchasers for the reasonable fees and
disbursements of one firm or counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, Holdings agrees to indemnify and hold harmless each
Holder of Discount Notes or Exchange Notes covered thereby (including each
Initial Purchaser and, with respect to any Prospectus delivery as contemplated
in Section 4(h) hereof, each Exchanging Dealer), the directors, officers,
employees and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or
20
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement, or in any Prospectus forming a part thereof, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that Holdings shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission in any of
such documents in reliance upon and in conformity with written information
furnished to Holdings by or on behalf of any such Holder specifically for
inclusion therein. This indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
(b) Each Holder of Discount Notes or Exchange Notes covered by a
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) severally and not jointly agrees to indemnify and hold harmless
Holdings, the directors, officers, employees and agents of Holdings and each
other person who controls Holdings within the meaning of either the Securities
Act or the Exchange Act to the same extent as the foregoing indemnity from
Holdings to each such Holder, but only with reference to written information
relating to such Holder furnished to Holdings by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity, and agrees to reimburse each such indemnified party, as incurred, for
any legal or other
21
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement shall be in addition to any liability which any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) shall not
-
relieve the indemnifying party from liability under paragraph (a) or (b) above
unless and to the extent such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
--
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
-
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
--
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal
22
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
---
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
--
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, agrees to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in such
------
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the applicable Registration Statement which
resulted in such Losses; provided, however, that in no case shall any Initial
-------- -------
Purchaser or any subsequent Holder of any Discount Note or Exchange Note be
responsible, in the aggregate, for any amount in excess of the purchase discount
or commission applicable to such Discount Note, or in the case of an Exchange
Note, applicable to the Discount Note which was
23
exchangeable into such Exchange Note, as set forth on the cover page of the
Final Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the Discount
Notes or Exchange Notes purchased by such underwriter under the applicable
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by Holdings shall be deemed to be equal to the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value of
receiving Discount Notes or Exchange Notes, as applicable, registered under the
Securities Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement of material fact or omission to state a
material fact relates to information provided by the indemnifying party, on the
one hand, or by the indemnified party, on the other hand. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the pro visions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f)
24
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
6, each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls Holdings within the meaning of either the Securities Act or
the Exchange Act and each officer and director of Holdings shall have the same
rights to contribution as Holdings, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
Holdings or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and shall survive the sale by a Holder of Discount Notes
covered by a Registration Statement.
7. Liquidated Damages. (a) If (i) a Registration Statement is not
------------------ -
filed with the SEC on or prior to 90 days after the Issue Date, (ii) the
--
Exchange Offer Registration Statement or a Shelf Registration Statement, if
applicable, is not declared effective on or prior to 150 days after the Issue
Date, (iii) the Exchange Offer is not consummated on or prior to 180 days after
---
the Issue Date or (iv) a Shelf Registration Statement is filed and declared
--
effective on or prior to 150 days after the Issue Date but shall thereafter
cease to be effective or usable (at any time that Holdings is obligated to
maintain the effectiveness thereof) in connection with resales of Discount
Notes or Exchange Notes in accordance with and during the periods specified
herein (each such event referred to in clauses (i) through (iv), a "Registration
------------
Default"), Holdings shall be obligated to pay liquidated damages ("Liquidated
------- ----------
Damages") to each Holder of Transfer Restricted Securities, during the first 90-
-------
day period immediately following the occurrence of such Registration Default, in
an amount equal to 5 cent per week per $1,000 of the Accreted Value
25
of the Discount Notes constituting Transfer Restricted Securities held by such
Holder. The amount of the Liquidated Damages shall increase an additional 5
cents per week per $1,000 of the Accreted Value of the Discount Notes
constituting Transfer Restricted Securities for each subsequent 90-day period
until the applicable Registration Default has been cured, up to a maximum amount
of Liquidated Damages of 20 cents per week per $1,000 of the Accreted Value of
Discount Notes constituting Transfer Restricted Securities.
(b) Holdings shall notify the Trustee under the Indenture immediately
upon the happening of each and every Registration Default. Holdings shall pay
Liquidated Damages in arrears due on the Transfer Restricted Securities by
depositing with the paying agent (which may not be Holdings 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 Liquidated Damages payment date specified below, sums
sufficient to pay the Liquidated Damages then due. All accrued Liquidated
Damages shall be paid to Holders on May 1 and November 1 of each year during
which such Liquidated Damages are payable, commencing on the first such date to
occur after the obligation to pay Liquidated Damages arises. Each obligation to
pay Liquidated Damages shall be deemed to accrue from and including the date of
the applicable Registration Default. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages shall cease.
8. Miscellaneous. (a) No Inconsistent Agreements. Holdings has
------------- --------------------------
not, as of the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to the Discount Notes or the
Exchange Notes that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and
26
waivers or consents to departures from the provisions hereof may not be given,
unless Holdings has obtained the written consent of the Holders of at least a
majority of the then outstanding aggregate principal amount at maturity of
Discount Notes (or, after the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Notes); provided, however, that, with respect
-------- -------
to any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, Holdings shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Discount Notes are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by
the Majority Holders, determined on the basis of Discount Notes being sold
rather than registered under such Registration Statement.
(c) Notices. All communications hereunder shall be in writing and
-------
effective only on receipt, and shall be mailed, delivered or sent by fax and
confirmed:
(1) if to a Holder, at the most current address or fax number given by
such Holder to Holdings in accordance with the provisions of this Section
8(c), which address or fax number initially is, with respect to each
Holder, the address or fax number of such Holder maintained by the
Registrar under the Indenture, with a copy in like manner to Salomon
Brothers Inc;
(2) if to you, initially at the respective addresses or fax number set
forth in the Purchase Agreement; and
(3) if to Holdings, initially at its address or fax number set forth
in the Purchase Agreement.
27
The Initial Purchasers or Holdings by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) 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 Holdings
thereto, subsequent Holders of Discount Notes and/or Exchange Notes. Holdings
hereby agrees to extend the benefits of this Agreement to any Holder of
Discount Notes and/or Exchange Notes and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
(f) Headings. The section headings herein are for convenience only
--------
and shall not affect the construction hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICTS OF LAW RULES.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
28
(i) Discount Notes Held by Holdings, etc. Whenever the consent or
-------------------------------------
approval of Holders of a specified percentage of principal amount at maturity
of Discount Notes or Exchange Notes is required hereunder, Discount Notes or
Exchange Notes, as applicable, held by Holdings or its Affiliates (other than
subsequent Holders of Discount Notes or Exchange Notes if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Discount Notes or Exchange Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
29
Please confirm that the foregoing correctly sets forth the agreement
between Holdings and you.
Very truly yours,
IRON AGE HOLDINGS CORPORATION
By: /s/ Xxxxx XxXxxxxxx
-------------------------------
Name: Xxxxx XxXxxxxxx
Title: Vice President - Finance
Accepted in New York, New York
April 24, 1998
SALOMON BROTHERS INC
By: /s/ X. X. Xxxxx
----------------------
Name: X. X. Xxxxx
-----------------
Title: Managing Director
----------------
SBC WARBURG DILLON READ INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------
Title: Managing Director
----------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------
Title: Director
----------------
BANQUE NATIONALE DE PARIS
By: /s/ [UNKNOWN SIGNATURE] /s/ [UNKNOWN SIGNATURE]
---------------------- -----------------------
Name:
-----------------
Title:
----------------
30
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the 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 Discount Notes where
such Exchange Notes were acquired by such broker-dealer as a result of market-
making activities or other trading activities. Holdings has agreed that,
starting on the Expiration Date (as defined herein) and ending on the close of
business on the ninetieth day 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."
31
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Discount Notes, where such Discount 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."
32
ANNEX C
PLAN OF DISTRIBUTION
--------------------
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the 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 Discount Notes where such Discount Notes were acquired as a result
of market-making activities or other trading activities. Holdings has agreed
that, starting on the Expiration Date and ending on the close of business on the
ninetieth day 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 __________, ___, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.
Holdings 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 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 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 and/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 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 of any
such resale of Exchange Notes and any commissions or concessions received by any
33
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 90 days after the Expiration Date, Holdings 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. Holdings has agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the Holders of
the Discount Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Discount Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
34
ANNEX D
Rider A
-------
CHECK HERE AND COMPLETE THE INFORMATION BELOW 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:
------------------------------
------------------------------
Rider B
-------
The undersigned represents that (i) any Exchange Notes to be received
-
by the undersigned shall be acquired in the ordinary course of its business,
(ii) the undersigned has no arrangement or understanding with any person to
--
participate in the distribution of the Exchange Notes and (iii) the undersigned
---
is not an "affiliate" (as defined in Rule 405 under the Securities Act) of
Holdings, or, if it is an affiliate, it shall comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
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 Discount Notes, it represents that the
Discount Notes to be exchanged for Exchange Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such 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.
35
