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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of October 17, 1997
by and among
J. Crew Operating Corp.
C & W Outlet, Inc.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
H.F.D. No. 55, Inc.
J. Crew, Inc.
J. Crew International, Inc.
J. Crew Services, Inc.
Popular Club Plan, Inc.
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Chase Securities Inc.
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This Registration Rights Agreement (this "Agreement")
is made and entered into as of October 17, 1997 by and among
J. Crew Operating Corp., a Delaware corporation (the "Company"), the
Company's subsidiaries, (each a "Guarantor" and collectively, the
"Guarantors"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and Chase Securities Inc. (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers"), each of
whom has agreed to purchase the Company's 10 3/8% Series A Senior
Subordinated Notes due 2007 (the "Series A Senior Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase
Agreement, dated October 14, 1997 (the "Purchase Agreement"), by
and among the Company, the Guarantors and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase
the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the obligations
of the Initial Purchasers set forth in Section 3 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or
other day in the City of New York, or in the city of the
corporate trust office of the Trustee, on which banks are
authorized to close.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series B
Notes that are acquired by a Broker-Dealer in the Exchange Offer
in exchange for Series A Notes that such Broker-Dealer acquired
for its own account as a result of market making activities or
other trading activities (other than Series A Notes acquired
directly from the Company or any of its affiliates).
Certificated Securities: As defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of
(a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be
issued in the Exchange Offer, (b) the maintenance of such
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
Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by Holders
thereof pursuant to the Exchange Offer.
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Damages Payment Date: With respect to the Series A
Notes, each Interest Payment Date.
Exchange Act: The Securities Exchange Act of 1934,
as amended.
Exchange Offer: The registration by the Company under
the Act of the Series B Notes pursuant to the Exchange Offer
Registration Statement pursuant to which the Company shall offer
the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities for Series B Notes in an aggregate principal amount
equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Notes to certain
"qualified institutional buyers," as such term is defined in Rule
144A under the Act, and outside the United States pursuant to
Regulation S under the Act.
Global Noteholder: As defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date, among
the Company, the Guarantors and State Street Bank and Trust
Company, as trustee (the "Trustee"), pursuant to which the 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 Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date,
each Person who is a Holder of 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 and the Guarantors relating to (a) an offering of
Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i)
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 Transfer Restricted Securities.
Series B Notes: The Company's 10 3/8% Series B Senior
Subordinated Notes due 2007 to be issued pursuant to the
Indenture (i) in the Exchange Offer or (ii) upon the request of
any Holder of Series A Notes covered by a Shelf Registration
Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the
earliest to occur of (a) the date on which such 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 Note has been
disposed of in accordance with a Shelf Registration Statement,
(c) the date on which such 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 Note
is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer
Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities.
SECTION 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 and
the Guarantors 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 135 days after
the Closing Date, (iii) in connection with the foregoing, (A)
file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B)
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file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act
and (C) cause all necessary filings, if any, in connection with
the registration and qualification of the Series B Notes to be
made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv)
upon the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting
registration of the Series B Notes to be offered in exchange for
the Series A Notes that are Transfer Restricted Securities and to
permit sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their
respective 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 and the Guarantors shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No
securities other than the Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors
shall use their respective 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 Series A Notes that are Transfer
Restricted Securities 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 Series A Notes (other
than Transfer Restricted Securities acquired directly from the
Company or any Affiliate of 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 Series B Note received
by such Broker-Dealer 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 Securities 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
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.
The Company and the Guarantors shall use their
respective 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 Securities by Restricted
Broker-Dealers, and to ensure that such Registration Statement
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 one year from the date on
which the Exchange Offer is Consummated.
The Company and the Guarantors 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 one day after such request, at any time during
such one-year period in order to facilitate such sales.
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SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not
required to file an Exchange Offer Registration Statement with respect
to the Series B 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 Securities shall notify the Company within 20 Business
Days following the Consummation of the Exchange Offer that (A)
such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not
resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from the Company or one of its affiliates, then the
Company and the Guarantors shall (x) cause to be filed on or
prior to 30 days after the date on which the Company determines
that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 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 Securities the
Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and shall (y) use their
respective best efforts to cause such Shelf Registration
Statement to become effective on or prior to 135 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. The Company and
the Guarantors shall use their respective 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 Securities 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.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 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 Securities
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.
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SECTION 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, (iii) the Exchange Offer has not
been Consummated within 180 days after the Closing Date or (iv)
any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective
or fail to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
declared effective immediately (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then the
Company and the Guarantors hereby jointly and severally agree to
pay liquidated damages to each Holder of Transfer Restricted
Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an
amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder for each week
or portion thereof that the Registration Default continues. The
amount of the liquidated damages shall increase by an additional
$.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a
maximum amount of liquidated damages of $.25 per week per $1,000
principal amount of Transfer Restricted Securities.
Notwithstanding anything to the contrary set forth herein, (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
declared effective or made usable in the case of (iv) above, the
liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii)
or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the
Global Note Holder by wire transfer of immediately available
funds or by federal funds check and to Holders of Certificated
Securities by mailing checks to their registered addresses on
each Damages Payment Date. All obligations of the Company and the
Guarantors set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at
the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations
with respect to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company and the
Guarantors shall comply with all applicable provisions of Section
6(c) below, shall use their respective best efforts to effect
such exchange and to permit the sale of Broker-Dealer Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) 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
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by applicable federal law, the Company and the Guarantors
hereby agree to seek a no-action letter or other favorable
decision from the Commission allowing the Company and
the Guarantors to Consummate an Exchange Offer for such
Series A Notes. The Company and the Guarantors hereby agree
to pursue the issuance of such a decision to the Commission
staff level. In connection with the foregoing, the Company
and the Guarantors hereby agree 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.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation of
the Exchange Offer, a written representation to the Company
and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Series
B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Notes in its ordinary course of
business. 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar
no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery
requirements of the Act 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 Series B Notes
obtained by such Holder in exchange for Series A Notes
acquired by such Holder directly from the Company or an
affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors
shall provide a supplemental letter to the Commission (A)
stating that the Company and the Guarantors are registering
the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including
a representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in
the Exchange Offer and that, to the best of the Company's
and each Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series
B Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate
in the distribution of the Series B Notes received in the
Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in
any no-action letter obtained pursuant to clause (i) above.
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(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Company and the Guarantors
shall comply with all the provisions of Section 6(c) below and
shall use their respective best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company and the Guarantors will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(c) General Provisions. In connection with any
Registration Statement and any related Prospectus required by
this Agreement to permit the sale or resale of Transfer
Restricted Securities (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 Securities by
Restricted Broker-Dealers), the Company and the Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide
all requisite financial statements for the period specified
in Section 3 or 4 of this Agreement, as applicable. Upon
the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file
promptly an appropriate amendment to such Registration
Statement, (1) in the case of clause (A), correcting any
such misstatement or omission, and (2) in the case of
clauses (A) and (B), use their respective best 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 anything to the contrary set
forth in this Agreement, the Company's and the Guarantor's
obligations to use their respective best efforts to keep
the Shelf Registration Statement continuously effective,
supplemented and amended shall be suspended in the event
continued effectiveness of the Shelf Registration Statement
would, in the opinion of counsel to the Company, require
the Company to disclose a material financing, acquisition
or other corporate transaction, and the Board of Directors
shall have determined in good faith that such disclosure is
not in the best interests of the Company, but in no event
will any such suspension, individually or in the aggregate,
exceed ninety (90) days since the Closing Date.
(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 upon the earlier of the following (A)
when all Transfer Restricted Securities covered by such
Registration Statement have been sold and (B) when, in the
written opinion of counsel to the Company, all outstanding
Transfer Restricted Securities held by persons that are not
affiliates of the Company may be resold without
registration under the Act pursuant to Rule 144(k) under
the Act or any successor provision thereto; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely
manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by
such Registration
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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 Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement
of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement in order to make the statements
therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and
the Guarantors shall use their respective best efforts to
obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to the Initial Purchaser(s), 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), which documents
will be subject to the review and comment of such Holders
and underwriter(s) in connection with such sale, if any,
for a period of at least five Business Days, and the
Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the selling
Holders of the Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s) in
connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A
selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to
comply with the applicable requirements of the Act;
(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to the
selling Holders and to the underwriter(s) in connection
with such sale, if any, make the Company's and the
Guarantors' representatives available for discussion of
such document and other customary due
9
diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi) make available 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 the
Guarantors and cause the Company's and the Guarantors'
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;
(vii) 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 Securities, information with respect to
the principal amount of Transfer Restricted Securities
being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the
Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after
the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(viii) 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
amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder 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 and the Guarantors
hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each
of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement) 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 Securities pursuant to any Registration
Statement contemplated by this Agreement as may be
reasonably requested by any Holder of Transfer Restricted
Securities 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 and the Guarantors shall:
10
(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 and each Guarantor by (x) the
President or any Vice President and (y) a
principal financial or accounting officer of the
Company and such Guarantor, confirming, as of the
date thereof, the matters set forth in paragraphs
(a) through (d) of Section 9 of the Purchase
Agreement and such other similar matters as the
Holders, underwriter(s) and/or Restricted Broker
Dealers may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the
Company and the Guarantors covering matters
similar to those set forth in paragraph (e) of
Section 9 of the Purchase Agreement and such
other matter as the Holders, underwriters and/or
Restricted Broker Dealers may reasonably request,
and in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other
representatives of the Company and the
Guarantors, representatives of the independent
public accountants for the Company and the
Guarantors and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness
or fairness of such statements; and that such
counsel advises that, on the basis of the
foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by
officers and other representatives of the Company
and the Guarantors and without independent check
or verification), no facts came to such counsel's
attention that caused such counsel to believe
that the applicable Registration Statement, at
the time such Registration Statement or any
post-effective amendment thereto became
effective and, in the case of the Exchange
Offer Registration Statement, as of the
date of Consummation of the Exchange Offer,
contained an untrue statement of a material fact
or omitted to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration
Statement as of its date and, in the case of the
opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact
or omitted to state a material fact necessary in
order to make the statements therein, in the
light of the circumstances under which they were
made, not misleading. Without limiting the
foregoing, such counsel may state further that
such counsel assumes no responsibility for, and
has not independently verified, the accuracy,
completeness or fairness of the financial
statements, notes and schedules and other
financial and statistical data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; 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 primary underwritten offerings, and
affirming the matters set forth in the comfort
letters delivered pursuant to Section 9 of the
Purchase Agreement, 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,
the underwriter(s), if any, and Restricted Broker
Dealers, 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 and the Guarantors
pursuant to this clause (x).
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 and the Guarantors contemplated in (A)(1) above
cease to be true and correct, the Company and the Guarantors
shall so advise the underwriter(s), if any, the selling Holders
and each Restricted Broker-Dealer promptly and if requested by
such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer
Restricted Securities, 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 Securities 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 Securities covered by the applicable
Registration Statement; provided, however, that neither the
Company nor any Guarantor shall be required to register or
qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so
subject;
(xii) issue, upon the request of any Holder of Series
A Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Notes having an
aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder;
such Series B Notes to be registered in the name of such
Holder or in the name of the purchaser(s) of such Notes,
as the case may be; in return, the Series A Notes held by
such Holder shall be surrendered to the Company for cancellation;
(xiii) in connection with any sale of Transfer
Restricted Securities that will result in such securities
no longer being Transfer Restricted Securities, cooperate
with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such
denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered
by the Registration Statement to be registered with or
approved by such other
12
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 Securities, subject to the proviso contained in
clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or
have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related
Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
a Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the
Depository Trust Company;
(xvii) cooperate and assist in any filings required to
be made with the 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 their respective best 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 Securities to consummate the disposition of such
Transfer Restricted Securities;
(xviii) otherwise use their respective best 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);
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the
Holders of 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 best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and
all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(d) Restrictions on Holders. Each Holder agrees by
acquisition of a Transfer Restricted Security 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 Securities
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)(xv) hereof, or
13
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 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 Securities 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)(xv) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will
be borne by the Company, regardless of whether a Registration
Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses (including filings
made by any Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent
underwriter") and its counsel that may be required by the rules
and regulations of the NASD); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including
printing certificates for the Series B Notes to be issued in the
Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company, the Guarantors and the Holders of
Transfer Restricted Securities; and (v) all fees and
disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its and the
Guarantors' internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts,
retained by the Company or the Guarantors.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the
Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees
and disbursements of not more than one counsel, who shall be
chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
14
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally,
agree 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"), to the fullest extent
lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs
of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder) directly
or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses
are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders
expressly for use therein; provided, however, that the foregoing
indemnification with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any
preliminary prospectus or Prospectus, shall not inure to the
benefit of any Indemnified Holder from whom the person asserting
such loss, claim, damage, liability or expense purchased any of
the Notes if a copy of the Prospectus (or any amendment or
supplement thereto) was not sent or given on behalf of such
Indemnified Holder to such person at or prior to the written
confirmation of the sale of such Notes to such person and if the
Prospectus (or the Prospectus, as so amended or supplemented)
would have cured the defect giving rise to such loss, claim,
damage, liability or expense.
In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought or asserted against any of the Indemnified Holders with
respect to which indemnity may be sought against the Company or
the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly
notify the Company and the Guarantors in writing (provided, that
the failure to give such notice shall not relieve the Company or
the Guarantors of their obligations pursuant to this Agreement).
Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company and the
Guarantors (regardless of whether it is ultimately determined
that an Indemnified Holder is not entitled to indemnification
hereunder). The Company and the Guarantors 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. The Company and the
Guarantors shall be liable for any settlement of any such action
or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company
and the Guarantors agree to indemnify and hold harmless each
Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action
effected with the written consent of the Company. Neither the
Company nor any
15
Guarantor shall, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from
all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless
the Company and the Guarantors, and their respective directors,
officers, and any person controlling (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the
Company, and the respective officers, directors, partners,
employees, representatives and agents of each such person, to the
same extent as the foregoing indemnity from the Company and the
Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on 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, any Guarantor or its
directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and
duties given the Company and the Guarantors, and the Company,
such Guarantor, such 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 any Holder be liable
or responsible for any amount in excess of the amount by which
the total received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages
which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission.
(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 expenses 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 expenses in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from the issuance and sale of the Notes by the
Company or if such allocation is not permitted by applicable law,
the relative fault of the Company and the Guarantors, on the one
hand, and of the Indemnified Holder, on the other hand, in
connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault
of the Company and the Guarantors, on the one hand, and of the
Indemnified Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or such Guarantor 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 expenses 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, the Guarantors and each Holder of
Transfer Restricted Securities 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 amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or expenses
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
Section 8, no Holder or its related Indemnified Holders shall be
required to contribute, in the aggregate, any amount in excess of
the amount by which the total received by such Holder with
respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the
amount paid by such Holder for such Transfer Restricted
Securities plus (B) 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 Series A Notes held by each of the
Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding and during any period in which the Company or such
Guarantor 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 Securities, to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to
Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
customary underwriting arrangements entered into in connection
therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required
under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
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 Securities included in such
offering. Such investment bankers and managers are referred to
herein as the "underwriters."
17
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being
entitled to exercise all rights provided herein, in the
Indenture, the Purchase Agreement 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 and the Guarantors agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a
breach by them of the provisions of this Agreement and hereby
agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company
nor any Guarantor will, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of the Company's and the Guarantors' securities under
any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. Neither the
Company nor any Guarantor will take any action, or voluntarily
permit any change to occur, with respect to the 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 (i) in the case of Section 5 hereof and
this Section 12(d)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof,
the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose 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 Securities 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:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
J. Crew Operating Corp.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
18
With a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
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 each of the parties, including without limitation and without
the need for an express assignment, subsequent Holders of
Transfer Restricted Securities; 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 Securities
directly from such Holder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
J. Crew Operating Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
C&W Outlet, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
H.F.D. NO. 55, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
J. Crew, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
20
J. Crew International, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
J. Crew Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
Popular Club Plan, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name:
Title:
21
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Chase Securities Inc.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
22
