EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 27, 1997
by and among
▇▇▇▇▇▇▇'▇ FOOD MARKETS, INC.
as Issuer,
and
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
AND
PAINEWEBBER INCORPORATED,
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made and
entered into as of June 27, 1997, by and among ▇▇▇▇▇▇▇'▇ Food Markets, Inc., a
Texas corporation (the "Issuer"), as issuer, and BT Securities Corporation,
Chase Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and PaineWebber Incorporated
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June
24, 1997, among the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial Purchasers
of $150,000,000 aggregate principal amount of the Issuer's 93/8% Senior
Subordinated Notes due 2007 (the "Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuer has agreed to
provide to the Initial Purchasers and their direct and indirect transferees and
assigns the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Broker-Dealer" shall mean any broker or dealer registered under the
1934 Act.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer, provided, however, that any such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Exchange Notes" shall mean 93/8% Series B Senior Subordinated Notes
due 2007 to be issued by the Issuer under the Indenture containing terms
identical to the Notes (except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Notes or, if no such interest has
been paid, from the date of original issuance of the Notes, (ii) the transfer
restrictions thereon shall be eliminated and (iii) certain provisions relating
to an increase in the stated rate of interest thereon shall be eliminated) to be
offered to Holders of Notes in exchange for Notes pursuant to the Exchange
Offer.
"Exchange Offer" shall mean the exchange offer by the Issuer of
Registrable Notes for Exchange Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture relating to the Notes dated as
of June 27, 1997, between the Issuer and Marine Midland Bank, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Issuer" shall have the meaning set forth in the preamble of this
Agreement and also includes the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuer or
any of its affiliates (as such term is defined in Rule 405 under the ▇▇▇▇ ▇▇▇)
(other than the Initial Purchasers or subsequent holders of Registrable Notes if
such subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Notes) shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Participating Broker-Dealer" means any Broker-Dealer which holds
Participating Broker- Dealer Notes.
"Participating Broker-Dealer Notes" shall mean Notes acquired by a
Broker-Dealer in the Exchange Offer that such broker or dealer acquired for its
own account as a result of market making activities or other trading activities
(other than Registrable Notes acquired directly from the Issuer or any of its
affiliates).
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Notes" shall mean each Note, until the earliest to
occur of (a) the date on which such Note is exchanged for Exchange Notes upon
consummation of the Exchange Offer and entitled to be resold to the public by
the Holder thereof without complying with the prospectus delivery requirements
of the 1933 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 1933 Act.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuer with this Agreement, including
without limitation: (i) all SEC and National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees, if any (including, without
limitation, the fees and expenses of any "qualified independent underwriter"),
(ii) all fees and expenses incurred in connection with compliance with state
securities, blue sky or other securities laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
state securities, blue sky or other securities qualification or of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, certificates representing the Exchange Notes and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, if any, (v) the reasonable fees and disbursements of counsel
for the Issuer and, in the case of a Shelf Registration Statement, the
reasonable fees and disbursements (including the expenses of preparing and
distributing any underwriting or securities sales agreement) of one counsel (in
addition to appropriate local counsel) for the Holders (which counsel shall be
selected in writing by the Majority Holders), (vi) all application and filing
fees in connection with listing the Exchange Notes on a national securities
exchange or an automated quotation system, if any, (vii) the reasonable fees and
expenses of the independent public accountants of the Issuer, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, and (viii) the reasonable fees and expenses
of the trustee, including its counsel, and any exchange agent, escrow agent or
custodian, including their counsels, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of
the Issuer which covers any of the Exchange Notes or Registrable Notes pursuant
to the provisions of this Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuer pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the then Registrable Notes on an appropriate form
under Rule 415 under the 1933 Act, or any successor rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited
by any applicable law or applicable interpretation of the Staff of the SEC, the
Issuer shall (A) file an Exchange Offer Registration Statement covering the
offer by the Issuer to the Holders to exchange all of their
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Registrable Notes for Exchange Notes within 100 calendar days after the date
hereof, (B) use its best efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within 200 calendar days after the
date hereof, (C) use its best efforts to cause such Exchange Offer Registration
Statement to remain effective until the closing of the Exchange Offer or, in
accordance with the procedures set forth in Section 3(f), to the extent any
Participating Broker-Dealer participates in the Exchange Offer, use its best
efforts to maintain the effectiveness of the Exchange Offer Registration
Statement for a period ending on the earlier to occur of (i) the date when all
Exchange Notes held by Participating Broker-Dealers have been sold and (ii) 90
days after the consummation of the Exchange Offer and (D) use its best efforts
to consummate the Exchange Offer on or prior to 230 calendar days following the
date hereof. No securities other than the Exchange Notes shall be included in
the Exchange Offer Registration Statement. The Exchange Notes will be issued
under the Indenture (or a trust indenture which is identical in all material
respects to the Indenture, other than such changes to the Indenture or any such
identical trust indenture as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the TIA, and which
has been qualified under the TIA). Upon the effectiveness of the Exchange Offer
Registration Statement, the Issuer shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder (other than
Participating Broker-Dealers exchanging Participating Broker-Dealer Notes for
Exchange Notes, assuming that such Holder is not an affiliate of the Issuer
within the meaning of Rule 405 under the 1933 Act, acquires the Exchange Notes
in the ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes) to trade such Exchange Notes from
and after their receipt without any limitations or restrictions under the 1933
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 business days
after the date notice thereof is mailed to the Holders (or such different
period as required by applicable law);
(iii) use the services of the Depositary for the Exchange Offer with
respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his election to have such Notes
exchanged;
(v) prior to effectiveness of the Exchange Offer Registration
Statement, if the SEC so requests, provide a supplemental letter to the
SEC (A) stating that the Issuer is registering the Exchange Offer in
reliance on the position of the SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters and (B)
including a representation that the Issuer has not entered into any
arrangement or
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understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Issuer's
information and belief, each Holder 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
(vi) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the Issuer;
and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in amount to the
Registrable Notes of such Holder so accepted for exchange.
The Exchange Offer shall not be subject to any conditions, other
than (i) that the Exchange Offer, or the making of any exchange by a Holder,
does not, in the good faith determination of the Issuer, (a) violate applicable
law, statute, rule or regulation, or (b) violate any applicable interpretation
of the Staff of the SEC and (ii) that there has been no action or proceeding
instituted in any court or before any governmental agency or regulatory
authority or any injunction, order or decree issued with respect to the Exchange
Offer, which would prohibit the Issuer from proceeding with the Exchange Offer.
Each Holder of Registrable Notes (other than Participating Broker-Dealers) who
wishes to exchange such Registrable Notes for Exchange Notes in the Exchange
Offer shall have represented that (w) it is not an affiliate (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) of the Issuer, (x) any Exchange Notes to be received by
it were acquired in the ordinary course of business, (y) at the time of the
commencement of the Exchange Offer it has no arrangement with any person to
participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Notes and (z) it is not acting on behalf of any person who could not
make the representations in clauses (w) through (y). The Issuer shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable Notes in
the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the Staff of the SEC, the Issuer is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason the Exchange Offer cannot be consummated within
230 calendar days following the date hereof, or (iii) if any Holder (other than
an Initial Purchaser) is not eligible to participate in the Exchange Offer or
(iv) upon the written request of any Initial Purchaser (with respect to any
Registrable Notes which it acquired directly from the Issuer), then the Issuer
shall upon receipt of notice of such event, or in the case of clause (iv) above,
within 90 days following the consummation of the Exchange Offer if any such
Initial Purchaser shall hold Registrable Notes which it acquired directly from
the Issuer, the Issuer shall, at its cost:
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(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the then
outstanding Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Notes and set forth in such Shelf Registration
Statement, and use its best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC by the 230th calendar day
after the date hereof (or within 90 calendar days following consummation
of the Exchange Offer) (or within 45 calendar days in the event of any
changes in law or applicable interpretations of the Staff of the SEC
pursuant to clause (b)(i) above but in no event before 100 calendar days
after the date hereof). In the event that the Issuer is required to file a
Shelf Registration Statement upon the request of any Holder (other than an
Initial Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Initial
Purchaser pursuant to clause (iv) above, the Issuer shall file and have
declared effective within 230 days of the date hereof by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Notes and a Shelf Registration Statement (which
may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Notes held by such Holder or such Initial Purchaser after completion of
the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the
Issuance Date (or one year from the date the Shelf Registration Statement
is declared effective if such Shelf Registration Statement is filed upon
the request of any Initial Purchaser pursuant to clause (iv) above) or
such shorter period which will terminate when all of the Registrable Notes
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or all of the Registrable Notes become
eligible for resale pursuant to Rule 144 under the 1933 Act without volume
restrictions; and
(C) notwithstanding any other provisions hereof use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplement
thereto complies in all material respects with the 1933 Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading.
The Issuer further agrees, if necessary, to supplement or amend any
such Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as reasonably practicable thereafter and to furnish to the
Holders of Registrable Notes copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Issuer shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and 2(b). Each Holder
shall pay all expenses of its counsel other than as set forth in the preceding
sentence, underwriting discounts and commissions (prior to the reduction
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thereof with respect to selling concessions, if any) and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC, provided, however, that if,
after it has been declared effective, the offering of Registrable Notes pursuant
to a Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume.
(e) Remedies for Breach. In the event that (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 100th
day following the date of original issue of the Notes, (b) such Exchange Offer
Registration Statement has not been declared effective on or prior to the 200th
day following the date of original issue of the Notes or (c) the Exchange Offer
is not consummated or a Shelf Registration Statement is not declared effective
on or prior to the 230th day following the date of original issue of the Notes
the interest rate borne by the Notes shall be increased by one-quarter of one
percent per annum following such 100-day period in the case of clause (a) above,
such 200-day period in the case of clause (b) above, or such 230-day period in
the case of clause (c) above (or, in the case of a Shelf Registration Statement
required to be filed in response to a change in law or applicable
interpretations of the Staff of the Securities and Exchange Commission, if
later, within 45 days after publication of the change in law or interpretation
but in no event before 100 calendar days after the date of original issue of the
Notes), which rate will be increased by an additional one-quarter of one percent
per annum for each 90-day period that any such additional interest continues to
accrue; provided that the aggregate increase in such annual interest rate will
in no event exceed one percent. Upon (x) the filing of the Exchange Offer
Registration Statement after the 100-day period described in clause (a) above,
(y) the effectiveness of the Exchange Offer Registration Statement after the
200-day period described in clause (b) above, or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 230-day period described in clause (c) above (or, in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or applicable interpretations of the Staff of the Securities and
Exchange Commission, if later, within 45 days after publication of the change in
law or interpretation but in no event before 100 calendar days after the
Issuance Date), the interest rate borne by the Notes from the date of such
filing, effectiveness, consummation, or that the applicable registration
statement again becomes effective and usable, as the case may be, will be
reduced to the original interest rate set forth above if the Issuer is otherwise
in compliance with this paragraph; provided, however, that, if after such
reduction in interest rate, a different event specified in clause (a), (b) or
(c) above occurs, the interest rate may again be increased and thereafter
reduced pursuant to the foregoing provisions. Not withstanding the foregoing,
the Issuer may issue a notice that the Shelf Registration Statement is unusable
pending the announcement of a material corporate transaction and may issue any
notice suspending use of the Shelf Registration Statement required under
applicable securities laws to be issued, and in the event that the aggregate
number of days in any consecutive twelve-month period for which all such notices
are issued and effective exceeds 30 days in the aggregate, then the interest
rate borne by the Notes will be increased by one quarter of one percent per
annum following the date that such Shelf Registration Statement ceases to be
usable beyond the 30- day period permitted above, which rate shall be increased
by an additional one-quarter of one percent per annum for each subsequent 90-day
period that such additional interest continues to accrue; provided that the
aggregate increase in such annual interest rate may in no event exceed one
percent. Upon the Issuer declaring that the Shelf Registration Statement is
usable after the interest rate has been increased pursuant
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to the preceding sentence, the interest rate borne by the Notes will be reduced
to the original interest rate if the Issuer is otherwise in compliance with this
paragraph; provided, however, that if after any such reduction in interest rate
the Shelf Registration Statement again ceases to be usable beyond the period
permitted above, the interest rate will again be increased and thereafter
reduced pursuant to the foregoing provisions.
3. Registration Procedures. In connection with the obligations of
the Issuer with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Issuer, (ii) shall, in
the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof, (iii) shall, in the case
of the Exchange Offer Registration Statement, be available for the sale of
Participating Broker-Dealer Notes by the Holders thereof for the time
period described in Section 2(a) and (iv) shall comply as to form in all
material respects with the requirements of the applicable form and include
or incorporate by reference all financial statements required by the SEC
to be filed therewith, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to (i) the Exchange Offer Registration Statement as may be
necessary under applicable law to keep such Exchange Offer Registration
Statement effective for the period required to comply with Section 2(a)
(except to the extent the Issuer is unable to consummate the Exchange
Offer and the Issuer complies with Section 2(b)), and (ii) the Shelf
Registration Statement as may be necessary under applicable law to keep
such Shelf Registration Statement effective for the period required
pursuant to Section 2(b) hereof; cause each Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act, and comply with the provisions of
the 1933 Act with respect to the disposition of all securities covered by
each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least ten days prior to filing, that the Shelf
Registration Statement with respect to the Registrable Notes is being
filed and advising such Holders that the distribution of Registrable Notes
will be made in accordance with the method elected by the Majority
Holders; and (ii) furnish to each Holder of Registrable Notes, to counsel
for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Notes, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder
specifically so requests in writing, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Notes; and (iii) subject to the last
paragraph of Section 3, hereby consent to the use of the Prospectus,
including each preliminary Prospectus, or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes in connection
with the offering and sale of the Registrable Notes covered by the
Prospectus or any amendment or supplement thereto;
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(d) use its best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Notes shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, cooperate with the Holders in
connection with any filings required to be made with the NASD, keep each
such registration or qualification effective during the period such
Registration Statement is required to be effective and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction
of such Registrable Notes owned by such Holder, provided, however, that
the Issuer shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d) or (ii) take
any action which would subject it to general service of process or
taxation in any such jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, notify each Holder of Registrable Notes and counsel for such
Holders promptly and, if requested by such Holder or counsel, confirm such
advice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Issuer
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by the
Issuer of any notification with respect to the suspension of the
qualification of the Registrable Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of the
happening of any event or the discovery of any facts during the period
such Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vii) of any determination by the Issuer that a
post-effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by a Participating Broker-Dealer who holds
Participating Broker-Dealer Notes; provided that 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 SEC as a result of a change in policy after the date of this
Agreement, (ii) furnish to each Participating Broker-Dealer, without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request, (iii) include in the Exchange Offer Registration
Statement a statement that any Participating Broker-Dealer who receives
Exchange Notes for Registrable Notes pursuant to the Exchange Offer, may
be a statutory underwriter and must deliver a prospectus meeting the
9
requirements of the 1933 Act in connection with any resale of such
Exchange Notes, (iv) subject to the last paragraph of Section 3, hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
Participating Broker-Dealer in connection with the sale or transfer of the
Participating Broker-Dealer Notes covered by the Prospectus or any
amendment or supplement thereto, and (v) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account
in exchange for Registrable Notes, it represents that the
Registrable Notes to be exchanged for Exchange Notes were acquired
by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Notes acquired pursuant to the Exchange
Offer; however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act;
and (y) a statement to the effect that by a Participating Broker-Dealer
making the acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the sale of Participating Broker-Dealer
Notes received in exchange for Registrable Notes, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within
the meaning of the 1933 Act;
(B) the Issuer shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement as
would otherwise be contemplated by Section 3(b), or take any other action
as a result of this Section 3(f), for a period exceeding the time
specified in Section 2(a)(C) (as such period may be extended by the
Issuer) and Participating Broker-Dealers shall not be authorized by the
Issuer to, and shall not, deliver such Prospectus after such period has
lapsed in connection with resales contemplated by this Section 3.
(g) in the case of an Exchange Offer, furnish counsel for
Participating Broker-Dealers, if any, and in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable Notes, copies
of any request by the SEC or any state securities authority for amendments
or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, furnish to each Holder of Registrable Notes, without charge, at
10
least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents incorporated therein
by reference or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing any restrictive
legends; and cause such Registrable Notes to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders or the underwriters, if any, may reasonably
request at least one business day prior to the closing of any sale of
Registrable Notes;
(k) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, upon the occurrence of any event or the discovery of any facts,
each as contemplated by Section 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such Prospectus will
not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The Issuer agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use
of the Prospectus until the Issuer has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Issuer determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Issuer agrees
promptly to notify each Holder of such determination and to furnish each
Holder such numbers of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Notes, not later than the
effective date of a Registration Statement, and provide the Trustee with
printed certificates for the Exchange Notes in a form eligible for deposit
with the Depositary;
(m) (i) cause the Indenture to be qualified under the TIA, no later
than the effective date of the first Registration Statement required by
this Agreement, (ii) cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the TIA and (iii) execute,
and use its best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(n) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, enter into agreements (including underwriting agreements) and take
all other customary and appropriate actions (including those reasonably
requested by the Majority Holders) in order to expedite or facilitate the
disposition of such Registrable Notes and in such event, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration,
11
(i) make such representations and warranties to the Holders of
such Registrable Notes and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
(ii) obtain opinions of counsel to the Issuer and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority in principal amount of the
Registrable Notes being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily covered
in opinions requested in sales of securities or underwritten
offerings;
(iii) obtain "cold comfort" letters and updates thereof from
the Issuer's independent certified public accountants addressed to
the underwriters, if any, and use best efforts to have such letters
addressed to the selling Holders of Registrable Notes, such letters
to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be
in form, substance and scope customary for similar offerings; and
(v) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to
the extent required thereunder. In the case of any underwritten offering,
the Issuer shall provide written notice to the Holders of all Registrable
Notes of such underwritten offering at least 30 days prior to the filing
of a prospectus supplement for such underwritten offering. Such notice
shall (x) offer each such Holder the right to participate in such
underwritten offering, (y) specify a date, which shall be no earlier than
ten days following the date of such notice, by which such Holder must
inform the Issuer of its intent to participate in such underwritten
offering and (z) include the instructions such Holder must follow in order
to participate in such underwritten offering;
(o) in the case of a Shelf Registration and, to the extent that the
Issuer is required to maintain an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a)
above, make available for inspection by representatives of the Holders of
the Registrable Notes and any underwriters participating in any
disposition pursuant to such Registration Statement and any counsel or
accountant retained by such Holders or underwriters, at reasonable times
and in a reasonable manner, all financial and other records, pertinent
corporate documents and properties of the Issuer reasonably requested by
any such persons, and cause the respective officers, directors, employees,
and any other agents of the Issuer to supply all information reasonably
requested by any such representative, underwriter, special counsel or
accountant in connection with such Registration Statement, provided,
however, that such Persons shall first agree in writing with the Issuer
that any information that is reasonably and in good faith designated by
the Issuer in writing as confidential at the time of delivery of such
information shall
12
be kept confidential by such Persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary
to respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of such
Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
Person or (iv) such information becomes available to such Person from a
source other than the Issuer and its subsidiaries and such source is not
known, after due inquiry, by the relevant Holder to be bound by a
confidentiality agreement; provided further, that the foregoing
investigation shall be coordinated on behalf of the Holders by one
representative designated by and on behalf of such Holders and any such
confidential information shall be available from such representative to
such Holders so long as any Holder agrees to be bound by such
confidentiality agreement;
(p) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the Initial
Purchasers and each other Broker-Dealer that has notified the Issuer that
it may or has exchanged Registrable Notes for Participating Broker-Dealer
Notes, and make such changes in any such document prior to the filing
thereof as any of the Initial Purchasers or such Broker-Dealers or their
counsel may reasonably request; (ii) in the case of a Shelf Registration,
a reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Holders of Registrable Notes, to
the Initial Purchasers, to counsel on behalf of the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any, and make such changes in any such document prior to the
filing thereof as the Majority Holders of Registrable Notes, the Initial
Purchasers on behalf of such Holders, their counsel and any underwriter
may reasonably request; and (iii) cause the representatives of the Issuer
to be available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Notes, the Initial Purchasers on
behalf of such Holders or any underwriter and shall not at any time make
any filing of any such document of which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall not have previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such Holders, their
counsel or any underwriter shall reasonably object, each of which actions
in this clause (iii) by the Holders shall be coordinated by one
representative for all the Holders at reasonable times and in a reasonable
manner;
(q) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Notes to be listed on any securities exchange, if
any, on which similar debt securities issued by the Issuer are then listed
if requested by the Majority Holders or by the underwriter or underwriters
of an underwritten offering of Registrable Notes, if any;
(r) in the case of a Shelf Registration, unless the rating in effect
for the Notes applies to the Exchange Notes and the Notes to be sold
pursuant to a Shelf Registration, use its best efforts to cause the
Registrable Notes to be rated with the appropriate rating agencies, if so
requested by the Majority Holders or by the underwriter or underwriters of
an underwritten offering of Registrable Notes, if any, unless the
Registrable Notes are already so rated; and
(s) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an
13
earning statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder.
No Holder of Registrable Notes may include any of its Registrable
Notes in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Issuer in writing, within 20 days after
receipt of a request therefor, such information as the Issuer may reasonably
request, including, without limitation, the information specified in item 507 of
Regulation S-K under the 1933 Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Registrable Notes shall be entitled to additional interest as
provided in such Holder's Registrable Notes 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 Issuer all information required to be disclosed in order to make
the information previously furnished to the Issuer by such Holder not materially
misleading.
In the case of a Shelf Registration Statement and, to the extent
that the Issuer is maintaining an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a) above,
each Holder agrees that, upon receipt of any notice from the Issuer of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Notes pursuant to such Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Issuer, such
Holder will deliver to the Issuer (at its expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes current at the time of receipt of
such notice. The Issuer will be deemed not to have used its best efforts to
cause a Registration Statement to become or remain effective during the
requisite period if the Issuer has voluntarily taken any action that resulted in
any Registration Statement not being declared effective and in Holders of
Registrable Notes covered thereby not being able to exchange or offer and sell
such Registrable Notes during that period or the delivery of a notice described
in Section 3(e)(vi) hereof unless (A) such action was required by applicable law
or (B) such action was taken by the Issuer in good faith and for valid business
reasons (but not including avoidance of the Issuer's obligations hereunder),
including a material corporate transaction; provided that, in any event, the
aggregate number of days in any consecutive twelve-month period for which a
Registration Statement is not effective or usable does not exceed 30 days. In
any event, any suspension pursuant to this paragraph shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
14
5. Indemnification and Contribution.
(a) The Issuer 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"), 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 Issuer by any of the
Holders expressly for use therein and provided further, that the Issuer will not
be liable to the Holders or any person controlling any Holder with respect to
any such untrue statement or omission made in any preliminary prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage or liability purchased the Notes
from any Holder in reliance upon a preliminary prospectus but was not sent or
given a copy of the Prospectus (as amended or supplemented) at or prior to the
written confirmation of the sale of such Notes to such person, unless such
failure to deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuer with Section 3 of this Agreement. The Issuer also
agrees to reimburse each Indemnified Holder for any and all fees and expenses
(including, without limitation, the fees and expenses of counsel) as they are
incurred in connection with enforcing such Indemnified Holder's rights under
this Agreement (including, without limitation, its rights under this Section 5).
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 Issuer, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Issuer in writing (provided,
that the failure to give such notice shall not relieve the Issuer of its
obligations pursuant to this Agreement unless such failure materially prejudices
the Issuer). 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 Issuer (regardless of whether it is ultimately
determined that an Indemnified Holder is not entitled to indemnification
hereunder). The Issuer 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
Issuer shall be liable for any settlement of any such action or proceeding
effected with the Issuer's prior written consent, which consent shall not be
withheld unreasonably, and the Issuer agrees 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 Issuer.
15
(b) Each Holder of Registrable Notes agrees, severally and not
jointly, to indemnify and hold harmless the Issuer and its directors, officers,
and any person controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Issuer, and its officers, directors,
partners, employees, representatives and agents of each such person, to the same
extent as the foregoing indemnity from the Issuer 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 Issuer or its directors or officers or any such controlling person
in respect of which indemnity may be sought against a Holder of Registrable
Notes, such Holder shall have the rights and duties given the Issuer, and the
Issuer, 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
Registrable Notes pursuant to a Registration Statement exceeds (i) the amount
paid by such Holder for such Registrable Notes and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under Section 5(a) or Section 5(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
Issuer, on the one hand, and the Holders, on the other hand, from their sale of
Registrable Notes or if such allocation is not permitted by applicable law, the
relative fault of the Issuer, 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 Issuer, 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 Issuer 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 5(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Issuer and each Holder of Registrable Notes agree that it would
not be just and equitable if contribution pursuant to this Section 5(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 5, 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 Registrable Notes pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Registrable Notes 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
16
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 5(c) are several in proportion to the respective principal amount of
Notes held by each of the Holders hereunder and not joint.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer represents and agrees
that (i) it has not entered into nor will the Issuer on or after the date of
this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof and (ii) 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 Issuer's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Issuer has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; provided, however, that no amendment, modification, supplement or
waiver or consent to any departure from the provisions of Section 5 hereof and
this Section 6(b) shall be effective as against any Holder of Registrable Notes
unless consented to in writing by such Holder. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relate
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that do not affect directly or indirectly the
rights of Holders whose securities are not being tendered pursuant to such
Exchange Offer shall be given by the Holders of a majority of the outstanding
principal amount of Registrable Securities subject to the Exchange Offer.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder (other than an Initial Purchaser), at the most current address
set forth on the records of the Registrar under the Indenture, (ii) if to an
Initial Purchaser, at the most current address given by such Initial Purchaser
to the Issuer by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is the address set forth in the
Purchase Agreement; and (iii) if to the Issuer, initially at the Issuer's
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(c).
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 is 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.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall
17
be deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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.
18
If the foregoing is in accordance with your understanding of this
Agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Issuer and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇'▇ FOOD MARKETS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Finance,
Secretary and Treasurer
Accepted and agreed to as of
the date first written above:
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
PAINEWEBBER INCORPORATED
Acting severally on behalf of
themselves and the several
Initial Purchasers named
in Schedule I hereto
BY: BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Foggia
Title: Vice President
Schedule I
(Registration Rights Agreement)
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
PAINEWEBBER INCORPORATED
