Exhibit 4.52
NATIONAL RESTAURANT ENTERPRISES HOLDINGS, INC.
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10 3/4% SENIOR NOTES DUE 2007
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 9, 2001
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This Amended and Restated Registration Rights Agreement (this "Agreement")
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is made and entered into as of July 9, 2001, by National Restaurant Enterprises
Holdings, Inc., a Delaware corporation (the "Company"), in favor and for the
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benefit of the holders of the Company's 10 3/4% Senior Notes due 2007 (the
"Senior Notes") (each a "Beneficial Holder" and, collectively, the "Beneficial
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Holders"), each of which has agreed to exchange its 10 3/4% Senior Notes due
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2006 of AmeriKing, Inc. (the "AmeriKing Senior Notes") for, among other things,
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the Senior Notes pursuant to the Exchange Offer (as defined below).
This Agreement is made in connection with the Company's offer to exchange
(the "AmeriKing Exchange Offer") the Senior Notes and units (the "Units"), each
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each consisting of $1,000 principal amount of the Company's 13% Senior PIK Notes
due 2008 (the "Senior PIK Notes") and a warrant (the "Warrants" and, together
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with the Senior Notes and the Senior PIK Notes, the "Securities") to purchase a
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pro rata portion of the Company's common stock, par value $.01 per share
("Common Stock"), representing 19.99% of the fully-diluted Common Stock,
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for the AmeriKing Senior Notes pursuant to the Company's Offering
Memorandum/Consent Solicitation Statement, dated May 31, 2001, as supplemented
(the "Offering Memorandum/Consent Solicitation Statement"). In order to induce
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the Beneficial Holders to exchange the AmeriKing Senior Notes, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Beneficial Holders to tender their AmeriKing Senior Notes in the Exchange
Offer.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Broker-Dealer Transfer Restricted Senior Notes: Exchange Notes that are
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acquired by a Broker-Dealer in the Exchange Offer in exchange for Senior Notes
that such Broker-Dealer acquired for its own account as a result of market-
making activities or other trading activities (other than Senior Notes acquired
directly from the Company or any of its affiliates).
Business Day: Any day except a Saturday, Sunday or other day in the City
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of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer,
(b) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Senior Notes
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Senior Notes, each Interest
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Payment Date.
Effectiveness Target Date: As defined in Section 5.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The Company's 10 3/4% Senior Notes due 2007 to be issued
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pursuant to the Indenture (i) in the Exchange Offer or (ii) upon the request of
any Holder of Senior Notes covered by a Shelf Registration Statement, in
exchange for such Senior Notes.
Exchange Offer: The registration by the Company under the Act of the
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Exchange Notes pursuant to the Exchange Offer Registration Statement pursuant to
which the Company shall offer the Holders of all outstanding Transfer Restricted
Senior Notes the opportunity to exchange all such outstanding Transfer
Restricted Senior Notes for Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Senior Notes
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated the Closing Date, among the Company and
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State Street Bank and Trust Company, as trustee (the "Trustee"), pursuant to
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which the Senior Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Senior Notes.
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NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, corporation, trust, unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
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Record Holder: With respect to any Damages Payment Date, each Person who
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is a Holder of Senior Notes on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company relating
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to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Senior Notes pursuant to the
Shelf Registration Statement, in each case, (i) which is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
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Transfer Restricted Senior Notes.
Senior Notes: The Senior Notes and the Exchange Notes.
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Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
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in effect on the date of the Indenture.
Transfer Restricted Senior Notes: Each Senior Note, until the earliest to
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occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Senior Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Senior Note is disposed of by
a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Senior Note is distributed to
the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Senior Notes
(each, a "Holder") whenever such Person owns Transfer Restricted Senior Notes.
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3. REGISTERED EXCHANGE OFFER
a. Unless the Exchange Offer shall not be permitted by applicable federal law
(after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company shall (i) cause to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 60 days after the
Closing Date, the Exchange Offer Registration Statement, (ii) use its best
efforts to cause such Exchange Offer Registration Statement to become effective
at the earliest possible time, but in no event later than 120 days after the
Closing Date, (iii) in
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connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Exchange Notes to be offered in exchange for
the Senior Notes that are Transfer Restricted Senior Notes and to permit sales
of Broker-Dealer Transfer Restricted Senior Notes by Restricted Broker-Dealers
as contemplated by Section 3(c) below.
b. The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open, for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Senior Notes
shall be included in the Exchange Offer Registration Statement. The Company
shall use its best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days thereafter.
c. The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Senior Notes that are
Transfer Restricted Senior Notes and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Senior Notes (other than Transfer Restricted
Senior Notes acquired directly from the Company) pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of each Exchange
Note received by such Broker-Dealer in exchange for Senior Notes in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Senior Notes by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Senior Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
d. The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for sales of Broker-Dealer Transfer Restricted
Senior Notes by Restricted Broker-Dealers, and to ensure that such Registration
Statement conforms with the requirements of this Agreement, the Act and the
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policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer is
Consummated.
e. The Company shall promptly provide sufficient copies of the latest version
of such Prospectus to such Restricted Broker-Dealers promptly upon request, and
in no event later than two days after such request, at any time during such one-
year period in order to facilitate such sales.
4. SHELF REGISTRATION
a. Shelf Registration. If (i) the Company is not required to file an Exchange
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Offer Registration Statement with respect to the Exchange Notes because the
Exchange Offer is not permitted by applicable law (after the procedures set
forth in Section 6(a)(i) below have been complied with) or (ii) if any Holder of
Transfer Restricted Senior Notes shall notify the Company within 20 Business
Days following the Consummation of the Exchange Offer that (A) such Holder is
prohibited by law or Commission policy from participating in the Exchange Offer
or (B) such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Senior Notes acquired directly from the Company or one of its
affiliates, then the Company shall (x) cause to be filed on or prior to the
earliest of (1) 60 days after the date on which the Company is notified by the
Commission or otherwise determines that it is not required to file the Exchange
Offer Registration Statement pursuant to clause (i) above and (2) 60 days after
the date on which the Company receives the notice specified in clause (ii)
above, a shelf registration statement pursuant to Rule 415 under the Act, (which
may be an amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement")), relating to all Transfer Restricted
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Senior Notes the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and (y) use their best efforts to cause such
Shelf Registration Statement to become effective at the earliest possible time,
but in no event later than 120 days after the date on which the Company becomes
obligated to file such Shelf Registration Statement. If, after the Company has
filed an Exchange Offer Registration Statement which satisfies the requirements
of Section 3(a) above, the Company is required to file and make effective a
Shelf Registration Statement solely because the Exchange Offer shall not be
permitted under applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause (x)
above. Such an event shall have no effect on the requirements of clause (y)
above, or on the Effectiveness Target Date as defined in Section 5 below. The
Company shall use its reasonable best efforts to keep the Shelf Registration
Statement discussed in this Section 4(a) continuously effective, supplemented
and amended as required by and subject to the provisions of Sections 6(b) and
(c) hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Senior Notes by the Holders thereof entitled to the benefit
of this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(c)(i)) following the date on which such Shelf
Registration Statement first becomes effective under the Act or such shorter
period that will terminate when all Transfer Restricted Senior Notes covered by
the Shelf Registration Statement have been sold pursuant thereto.
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b. Provision by Holders of Certain Information in Connection with the Shelf
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Registration Statement. No Holder of Transfer Restricted Senior Notes may
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include any of its Transfer Restricted Senior Notes in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information specified in item 507 of Regulation S-K under the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Senior Notes
shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and
until such Holder shall have used its best efforts to provide all such
information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
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not been Consummated within 30 Business Days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) subject to the
provisions of Section 6(c)(i) below, any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately (but in any event within five Business Days thereafter) by a post-
effective amendment to such Registration Statement that cures such failure and
that is itself declared effective within such five Business Day period, other
than, in the case of clause (iv) above, for such period in which such
Registration Statement shall cease to be effective as a result of post-effective
amendments to incorporate annual filings which the Company is required to file
with the Commission or post-effective amendments not otherwise covered by
Section 6(c)(i) hereof, provided that the Company in good faith attempts to
cause such Registration Statement to be declared effective as soon as reasonably
practicable (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company hereby agrees to pay to each Holder of
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Transfer Restricted Senior Notes, for the first 90-day period immediately
following the occurrence of such Registration Default, liquidated damages in an
amount equal to $0.05 per week per $1,000 principal amount of Senior Notes
constituting Transfer Restricted Senior Notes held by such Holder for so long as
the Registration Default continues. The amount of liquidated damages payable to
each Holder shall increase by an additional $0.05 per week per $1,000 in
principal amount of Transfer Restricted Senior Notes held by such Holder for
each subsequent 90-day period up to a maximum of $0.50 per week per $1,000 in
principal amount of Senior Notes constituting Transfer Restricted Senior Notes
held by such Holder; provided, however, that (1) upon filing of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be
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declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to such Transfer Restricted Senior Notes as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid by the Company to the Global
Note Holder by wire transfer of immediately available funds or by federal funds
check and to Holders of Certificated Securities by wire transfer to the accounts
specified by them or by mailing checks to their registered addresses if no such
accounts have been specified on each Damages Payment Date. All obligations of
the Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Senior Note at the time such security ceases
to be a Transfer Restricted Senior Note shall survive until such time as all
such obligations with respect to such security shall have been satisfied in
full.
6. REGISTRATION PROCEDURES
a. Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Company shall comply with all applicable provisions of Section 6(c)
below, shall use their best efforts to effect such exchange and to permit the
sale of Broker-Dealer Transfer Restricted Senior Notes being sold in accordance
with the intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
If, following the date hereof there has been published a change in
Commission policy with respect to exchange offers such as the Exchange Offer,
such that in the reasonable opinion of counsel to the Company there is a
substantial question as to whether the Exchange Offer is permitted by applicable
federal law or Commission policy, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for Senior Notes. The Company hereby agrees to
pursue the issuance of such a decision to the Commission staff level but shall
not be required to take commercially unreasonable action to effect a change of
Commission policy. In connection with the foregoing, the Company hereby agrees,
however, to take all such other actions as are requested by the Commission or
otherwise required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the Commission
staff of such submission.
As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each Holder of Transfer Restricted Senior Notes shall
furnish, upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of the Company, (B) it
is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange
Notes in its ordinary course of business. Each Holder hereby acknowledges and
agrees that any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the Exchange
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Offer (1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx
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and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
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(available May 13, 1988), as interpreted in the Commission's letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements of the
Act in connection with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K if the resales are of Exchange Notes obtained
by such Holder in exchange for Senior Notes acquired by such Holder directly
from the Company or an affiliate thereof.
To the extent required by the Commission, prior to effectiveness of the
Exchange Offer Registration Statement, the Company shall provide a supplemental
letter to the Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated in Exxon
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Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
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Inc. (available June 5, 1991) and, if applicable, any no-action letter obtained
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pursuant to clause (i) above, (B) including a representation that the Company
has not entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and that, to
the best of the Company's information and belief, each Holder of Transfer
Restricted Senior Notes participating in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above.
b. Shelf Registration Statement. In connection with the Shelf Registration
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Statement the Company shall comply with all the provisions of Section 6(c) below
and shall use its best efforts to effect such registration to permit the sale of
the Transfer Restricted Senior Notes being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto
the Company will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Senior Notes in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
c. General Provisions. In connection with any Registration Statement and any
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related Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Senior Notes (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus, to the extent that the
same are required to be available to permit sales of Broker-Dealer Transfer
Restricted Senior Notes by Restricted Broker-Dealers), the Company shall:
i. use its reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any
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such Registration Statement or the Prospectus contained therein (A) to contain
a material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Senior Notes during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause (A) or (B), use
its reasonable efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter. Notwithstanding
the foregoing, if (A) the Board of Directors of the Company determines in good
faith that it is in the best interests of the Company not to disclose the
existence of or facts surrounding any proposed or pending material corporate
transaction involving the Company or its subsidiaries and (B) the Company
notifies the Holders within two Business Days after the Board of Directors
makes such determination, the Company may allow the Shelf Registration
Statement to fail to be effective and usable as a result of such nondisclosure
for up to 60 days during the two-year period of effectiveness required by
Section 4 hereof, but in no event for any period in excess of 30 consecutive
days; provided, however, that the two-year period referred to in Section 4
hereof during which the Shelf Registration Statement is required to be
effective and usable shall be extended by the number of days during which such
registration statement was not effective or usable pursuant to the foregoing
provisions.
ii. prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, or such shorter period as will terminate when all
Transfer Restricted Senior Notes covered by such Registration Statement have
been sold; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Act, and to comply fully with Rules 424 and 430A, as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
iii. advise the underwriter(s), if any, and selling Holders promptly and,
if requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension
by any state securities commission of the qualification of the Transfer
Restricted Senior Notes for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement
of a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
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Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Senior Notes under state securities
or Blue Sky laws, the Company shall use its reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
iv. in the case of a Shelf Registration Statement, use reasonable efforts
to furnish to the Holder, each selling Holder named in any Registration
Statement or Prospectus and each of the underwriter(s) in connection with such
sale, if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), prior to filing and reasonably respond to comments received from
such persons, and make the Company's representatives available for discussion
of such documents and other customary due diligence matters.
v. subject to execution of confidentiality agreements that are
reasonably satisfactory to the Company as to the disclosure of any non-public
information obtained pursuant to Section 6(c)(vi), make available upon
reasonable notice and at reasonable times for inspection by the selling
Holders, any managing underwriter participating in any disposition pursuant to
such Registration Statement and any attorney or accountant retained by such
selling Holders or any of such underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant
in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness;
vi. in the case of a Shelf Registration Statement, if requested by any
selling Holders or the underwriter(s) in connection with such sale, if any,
promptly include in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Senior Notes, information
with respect to the principal amount of Transfer Restricted Senior Notes being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Senior Notes to be sold
in such offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company is
notified of the matters reasonably requested to be included in such Prospectus
supplement or post-effective amendment;
vii. in the case of a Shelf Registration Statement, furnish to each
selling Holder and each of the underwriter(s) in connection with such sale, if
any, without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each
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amendment thereto, including all documents incorporated by reference therein
and all exhibits (including exhibits incorporated therein by reference);
viii. deliver to each selling Holder of Transfer Restricted Senior Notes
and each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company hereby
consents to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Senior Notes covered by the Prospectus or any amendment or
supplement thereto;
ix. enter into such customary agreements and make such representations
and warranties and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer Restricted
Senior Notes pursuant to any Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder of Transfer Restricted
Senior Notes or underwriter in connection with any sale or resale pursuant to
any Registration Statement contemplated by this Agreement, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, the Company
shall:
A. furnish (or in the case of paragraphs (2) and (3), use its best
efforts to furnish) to each selling Holder and each underwriter, if any,
upon the effectiveness of the Shelf Registration Statement and to each
Restricted Broker-Dealer upon Consummation of the Exchange Offer:
1. a certificate, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, signed on behalf of the Company by (x)
the President or any Vice President and (y) a principal financial or
accounting officer of the Company confirming, as of the date thereof,
the matters set forth in [paragraphs (a) through (d) of Section 9 of
the Purchase Agreement] and such other similar matters as the Holders
and/or underwriter(s) may reasonably request;
2. an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company, covering
matters customarily covered in opinions requested in Underwritten
Offerings and dated the date of effectiveness of the Shelf
Registration Statement or the date of Consummation of the Exchange
Offer, as the case may be; and
3. a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from the
Company's independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with Underwritten Offerings, without
exception;
11
B. set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement the indemnification
provisions and procedures of Section 8 hereof with respect to all parties
to be indemnified pursuant to said Section; and
C. deliver such other documents and certificates as may be
reasonably requested by the selling Holders or the underwriter(s), if
any, to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company pursuant to this clause (ix).
The above shall be done at each closing under such underwriting
or similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of the Company contemplated in (A)(1)
above cease to be true and correct, the Company shall so advise the
underwriter(s), if any, and selling Holders promptly and if requested by such
Persons, shall confirm such advice in writing;
x. prior to any public offering of Transfer Restricted Senior
Notes, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Transfer Restricted Senior Notes under the securities or Blue Sky laws
of such jurisdictions as the selling Holders or underwriter(s), if any, may
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted Senior
Notes covered by the applicable Registration Statement; provided, however,
that the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
xi. issue, upon the request of any Holder of Senior Notes covered by
any Shelf Registration Statement contemplated by this Agreement, Exchange
Notes, having an aggregate principal amount equal to the aggregate principal
amount of Senior Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be registered in
the name of such Holder or in the name of the holder(s) of such Senior Notes,
as the case may be; in return, the Senior Notes held by such Holder shall be
surrendered to the Company for cancellation;
xii. in connection with any sale of Transfer Restricted Senior Notes
that will result in such securities no longer being Transfer Restricted Senior
Notes, cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Senior Notes to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Senior Notes in such
denominations and such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of Transfer Restricted
Senior Notes;
xiii. use its reasonable efforts to cause the disposition of the
Transfer Restricted Senior Notes covered by the Registration Statement to be
registered with or approved by such other
12
U.S. governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Senior Notes, subject to the proviso
contained in clause (x) above;
xiv. subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the holders of Transfer
Restricted Senior Notes, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
xv. provide a CUSIP number for all Transfer Restricted Senior Notes not
later than the effective date of a Registration Statement covering such
Transfer Restricted Senior Notes and provide the Trustee under the Indenture
with printed certificates for the Transfer Restricted Senior Notes which are
in a form eligible for deposit with the Depository Trust Company;
xvi. cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its reasonable efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities as
may be necessary to enable the Holders selling Transfer Restricted Senior
Notes to consummate the disposition of such Transfer Restricted Senior Notes;
xvii. otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to any applicable Registration Statement, as soon
as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
xviii. cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement required by this Agreement
and, in connection therewith, cooperate with the Trustee and the Holders of
Senior Notes to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner; and
xix. provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
13
d. Restrictions on Holders. Each Holder agrees by acquisition of a Transfer
-----------------------
Restricted Senior Note that, upon receipt of the notice referred to in Section
6(c)(i) or any notice from the Company of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Senior Notes pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof, or
until it is advised in writing by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus (the "Advice"). If so
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directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted Senior
Notes that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof
or shall have received the Advice.
7. REGISTRATION EXPENSES
a. All expenses incident to the Company's performance of or compliance with
this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made with the NASD
and counsel fees in connection therewith); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all printing expenses of printing (including printing certificates for the
Exchange Notes and printing of Prospectuses); (iv) all fees and disbursements of
counsel for the Company and, in accordance with Section 7(b) below, the Holders
of Transfer Restricted Senior Notes; and (v) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
b. In connection with any Shelf Registration Statement required by this
Agreement, the Company will reimburse the Holders of Transfer Restricted Senior
Notes the distribution of which is being registered pursuant to the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of a majority of the principal amount of
such Transfer Restricted Senior Notes, which counsel shall be satisfactory to
the Company in its sole discretion.
14
8. INDEMNIFICATION
a. The Company agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
-------------------
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or judgments (i) are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders expressly for use therein, (ii) with respect to the
preliminary prospectus, result from the fact that the Holder sold Transfer
Restricted Senior Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the prospectus, as
amended or supplemented, if the Company shall have previously furnished copies
thereof to the Holder in accordance with this Agreement and the prospectus, as
amended or supplemented, would have corrected such untrue statement or omission
or (iii) are a result of the use by the Indemnified Holder of any prospectus,
when, upon receipt of a notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof contemplated by the last
paragraph of Section 6 hereof, the Indemnified Holder was not permitted to do
so.
In case any action or proceeding shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company, such Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify the Company in writing (provided, that
the failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action but the fees and expenses of such
counsel shall be at the expense of the Indemnified Holder or such controlling
person unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both the Indemnified Holder or
such controlling person and the Company and the Indemnified Holder or such
controlling person shall have been advised in writing by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of the
Indemnified Holder or such controlling person), it being understood, however,
that the Company shall not, in connection with any one such action or proceeding
or separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders and be reasonably
satisfactory to the Company. The Company shall not be liable for any settlement
of any such action or proceeding
15
effected without the Company's prior written consent, which consent shall not be
withheld unreasonably, but if settled with the Company's written consent, and
the Company agrees to indemnify and hold harmless any Indemnified Holder from
and against any loss or liability by reason of such settlement. The Company
shall not, without the prior written consent of each Indemnified Holder effect
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Holder is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Holder, unless such settlement includes an
unconditional release of such Indemnified Holder from all liability on claims
that are the subject matter of such proceeding.
b. Each Holder of Transfer Restricted Senior Notes agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors,
officers, and any person controlling the Company (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with respect to information relating to such Holder furnished in writing by
such Holder expressly for use in any Registration Statement. In case any action
or proceeding shall be brought against the Company or its directors or officers
or any such controlling person in respect of which indemnity may be sought
against a Holder of Transfer Restricted Senior Notes, such Holder shall have the
rights and duties given the Company and the Company or its directors or officers
or such controlling person shall have the rights and duties given to each Holder
by the preceding paragraph. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
c. If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from their sale of
Transfer Restricted Senior Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or by the Indemnified Holder
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
16
The Company and each Holder of Transfer Restricted Senior Notes agree that
it would not be just and equitable if contribution pursuant to this Section 8(c)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Xxxxxxx 0, xxxx of the Holders (and its related Indemnified Holders) shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the dollar amount of proceeds received by such Holder upon the sale of
Transfer Restricted Senior Notes exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective principal
amount of Senior Notes held by each of the Holders hereunder and not joint.
9. RULE 144A AND RULE 144
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Senior Notes remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Securities Exchange
Act, to make available, upon request of any Holder of Transfer Restricted Senior
Notes, to any Holder or beneficial owner of Transfer Restricted Senior Notes in
connection with any sale thereof and any prospective holder of such Transfer
Restricted Senior Notes designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Senior Notes pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required
thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Senior Notes on
the basis provided in customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, lock-up letters and other documents required
under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
Subject to the Company's consent, for any Underwritten Offering, the
investment banker or investment bankers and manager or managers for any
Underwritten Offering that will administer such offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Senior Notes included in such offering. Such investment bankers and managers
are referred to herein as the "underwriters."
17
12. MISCELLANEOUS
a. Remedies. Each Holder, in addition to being entitled to exercise all
--------
rights provided herein, in the Indenture or granted by law, including recovery
of liquidated or other damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
b. No Inconsistent Agreements. The Company will not, on or after the date
--------------------------
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person, other than those rights existing by virtue of the
Amended and Restated Registration Rights Agreement, dated July 9, 2001, executed
by the Company for the benefit of the holders of its Senior PIK Notes. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
c. Adjustments Affecting the Senior Notes. The Company will not take any
--------------------------------------
action, or voluntarily permit any change to occur, with respect to the Senior
Notes that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
d. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of (i) in the case of Section 5 hereof, the Holders of all
outstanding Transfer Restricted Securities, and (ii) in the case of all other
provisions hereof, the Holders of a majority of the outstanding principal amount
of Transfer Restricted Senior Notes. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Senior Notes subject to such Exchange Offer.
e. Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
If to a Holder:
At the address set forth on the records of the Registrar under
the Indenture, with a copy to the Registrar under the Indenture;
If to the Company:
National Restaurant Enterprises Holdings, Inc.
18
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
f. Successors and Assigns. This Agreement shall inure to the benefit of and
----------------------
be binding upon the successors and assigns of the Company and the initial
Holders of Transfer Restricted Senior Notes; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Senior Notes directly from such Holder at a time when such
Holder could not transfer such Transfer Restricted Senior Notes pursuant to a
Shelf Registration Statement.
g. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed shall be deemed to be an original.
h. Headings. The headings in this Agreement are for convenience of reference
--------
only and shall not limit or otherwise affect the meaning hereof.
i. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
j. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
19
k. Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Senior Notes. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
20
IN WITNESS WHEREOF, the Company has executed this Agreement as of the date
first written above.
NATIONAL RESTAURANT ENTERPRISES HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxxxx X. Xxxxxxx
President and Chief Operating Officer
21
