EXHIBIT 10.15
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 11, 1997
by and between
LESLIE'S POOLMART, INC.,
and
BT SECURITIES CORPORATION
(as Initial Purchaser)
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$90,000,000
10-3/8% SENIOR NOTES DUE 2004
This Registration Rights Agreement is dated as of June 11, 1997, by
and between Leslie's Poolmart, Inc., a Delaware corporation (the "Issuer") and
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BT Securities Corporation (the "Initial Purchaser").
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This Agreement is made pursuant to the Purchase Agreement, dated June
6, 1997, between the Issuer and the Initial Purchaser (the "Purchase
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Agreement"). In order to induce the Initial Purchaser to enter into the
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Purchase Agreement, the Issuer has agreed to provide the registration rights
provided for in this Agreement to the Initial Purchaser and its direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
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Affiliate: With respect to any specified person, "Affiliate" shall
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mean any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For the
purposes of this definition, "control," when used with respect to any person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "affiliated," controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
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amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Any day except a Saturday, a Sunday or a day on which
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banking institutions in New York, New York generally are required or authorized
by law or other government action to be closed.
Consummate or consummate: When used to qualify the term "Exchange
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Offer," shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer
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for all Notes validly tendered and not validly withdrawn pursuant thereto in
accordance with the terms of this Agreement.
Consummation Date: The date that is 45 days immediately following the
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date that the Exchange Registration Statement shall have been declared effective
by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
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Exchange Notes: The 10-3/8% Senior Notes due 2004 of the Issuer, that
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are identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as provided in the
Indenture (or the indenture pursuant to which the Exchange Notes are issued),
and the issuance thereof pursuant to the Exchange Offer shall have been
registered pursuant to an effective Registration Statement in compliance with
the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of the
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Notes, a like aggregate principal amount of Exchange Notes, which offer shall be
made by the Issuer pursuant to Section 2 hereof.
Exchange Offer Filing Date: As defined in Section 2(a).
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Exchange Registration Statement: As defined in Section 2(a) hereof.
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Indemnified Person: As defined in Section 7(a) hereof.
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Indenture: The Indenture, dated as of June 11, 1997, between the
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Issuer and U.S. Trust Company of California, N.A. as trustee thereunder,
pursuant to which the Notes are issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereof.
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Issue Date: As defined in Section 2(a).
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Issuer: As defined in the preamble hereof.
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Notes: The 10-3/8% Senior Notes due 2004 of the Issuer issued
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pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
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Private Exchange: As defined in Section 2(c) hereof.
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Private Exchange Notes: As defined in Section 2(c) hereof.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Notes, Exchange Notes or Private
Exchange Notes covered by such Registration Statement, and all other amendments
and supplements to any such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
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Registration Statement: Any registration statement of the Issuer that
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covers any of the Notes, Exchange Notes or Private Exchange Notes pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
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Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144(k): Rule 144(k) promulgated by the SEC pursuant to the
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Securities Act, as such Rule may be amended from
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time to time, or any similar rule or regulation hereafter adopted by the SEC as
a replacement thereto having substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the SEC thereunder.
Shelf Filing Event: As defined in Section 3(a) hereof.
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Shelf Registration: As defined in Section 3(a) hereof.
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Shelf Registration Statement: As defined in Section 3(a) hereof.
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Special Counsel: Such special counsel to the holders of Transfer
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Restricted Notes as shall be agreed upon by the Issuer and holders of a majority
in aggregate principal amount of Transfer Restricted Notes, the reasonable
expenses of which
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holders of Transfer Restricted Notes will be reimbursed by the Issuer pursuant
to Section 6 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Note: Each Note, upon original issuance thereof,
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and at all times subsequent thereto, each Exchange Note as to which Section
3(a)(ii) hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Note, Exchange Note or
Private Exchange Note, as the case may be, the earliest to occur of (i) the date
on which any such Note has been exchanged by a person other than a Participating
Broker-Dealer for an Exchange Note (other than with respect to an Exchange Note
as to which Section 3(a)(ii) hereof applies) pursuant to the Exchange Offer,
(ii) with respect to Exchange Notes received by Participating Broker-Dealers in
the Exchange Offer, the earlier of (x) the date on which such Exchange Note has
been sold by such Participating Broker-Dealer by means of the Prospectus
contained in the Exchange Registration Statement and (y) the date on which the
Exchange Registration Statement has been effective under the Securities Act for
a period of six months after the Consummation Date, (iii) a Shelf Registration
Statement covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or Private Exchange
Note, as the case may be, has been disposed of in accordance with such effective
Shelf Registration Statement, (iv) the date on which such Note, Exchange Note or
Private Exchange Note, as the case may be, is eligible for distribution to the
public without volume or manner of sale restrictions pursuant to Rule 144(k) or
(v) the date on which such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the Indenture or any other
indenture under which such Exchange Note or Private Exchange Note was issued.
Trustee: The trustee under the Indenture.
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underwritten registration or underwritten offering: A registration in
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connection with which securities are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
2. Exchange Offer
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(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the
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Issuer shall (A) prepare and, on or prior to 60 days after the date of original
issuance of the Notes (the "Issue Date") (the "Exchange Offer Filing Date"),
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file with the SEC a Registration Statement under the Securities Act with respect
to an offer by the Issuer to the holders of the Notes to issue and deliver to
such holders, in exchange for Notes, a like principal amount of Exchange Notes,
(B) use its best efforts to cause the Registration Statement relating to the
Exchange Offer to be declared effective by the SEC under the Securities Act on
or prior to 150 days after the Issue Date, and (C) commence the Exchange Offer
and use its best efforts to issue, on or prior to the Consummation Date, the
Exchange Notes. The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on an
appropriate form (the "Exchange Registration Statement") and duly registered or
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qualified under all applicable state securities or Blue Sky laws and will comply
with all applicable tender offer rules and regulations under the Exchange Act
and state securities or Blue Sky laws. The Exchange Offer shall not be subject
to any condition, other than that the Exchange Offer does not violate any
applicable law or interpretation of the staff of the SEC. Upon consummation of
the Exchange Offer in accordance with this Section 2, the Issuer shall have no
further registration obligations other than with respect to (i) Private Exchange
Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes
or Exchange Notes as to which Section 3(a)(iii) hereof applies. No securities
shall be included in the Exchange Registration Statement other than the Exchange
Notes.
(b) The Issuer may require each holder of Notes, as a condition
to its participation in the Exchange Offer, to represent to the Issuer and its
counsel in writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the Exchange Offer (i) any
Exchange Notes received by such holder will be acquired in the ordinary course
of its business, (ii) such holder will have no arrangement or understanding with
any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes and (iii) such holder is not an Affiliate
of the Issuer, or if it is an Affiliate of the Issuer, it will comply with the
registration and prospectus delivery requirements of the Securities Act, to the
extent applicable.
If the holder is not a broker-dealer, it will be required to represent
that it is not engaged in, and does not intend to engage in, the distribution of
the Exchange Notes. If the holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes that were acquired as
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a result of market-making activities or other trading activities, it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes.
(c) If, prior to consummation of the Exchange Offer, the
Initial Purchaser holds any Notes acquired by them and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, or any other holder of Notes is not entitled to
participate in the Exchange Offer, the Issuer, upon the request of the Initial
Purchaser or any such holder, shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to such Initial
Purchaser and any such holder, in exchange (the "Private Exchange") for such
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Notes held by the Initial Purchaser and any such holder, a like principal amount
of debt securities of the Issuer, that are identical in all material respects to
the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant
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to the same indenture as the Exchange Notes). The Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the staff of the SEC, the Issuer shall mail
the Exchange Offer Prospectus and appropriate accompanying documents, including
appropriate letters of transmittal, to each holder of Notes providing, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"),
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which date shall in no event be later than the Consummation Date (unless
otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged
pursuant to the Exchange Offer will be required to surrender such Note,
together with the enclosed letters of transmittal, to the institution and
at the address (located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the Exchange
Date; and
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(iv) that holders of Notes that do not tender all such securities
pursuant to the Exchange Offer may no longer have any registration rights
hereunder with respect to Notes not tendered.
Promptly after the Exchange Date, the Issuer shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Issuer, and issue, cause the Trustee under the Indenture (or the indenture
pursuant to which the Exchange Notes are issued) to authenticate, and mail
to each holder of Notes, Exchange Notes equal in principal amount to the
principal amount of the Notes surrendered by such holder.
(e) The Issuer and the Initial Purchaser acknowledge that the
staff of the SEC has taken the position that any broker-dealer that owns
Exchange Notes that were received by such broker-dealer for its own account in
the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
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"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuer and the Initial Purchaser also acknowledge that it is the
SEC staff's position that if the Prospectus contained in the Exchange
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Notes, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligations under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
In light of the foregoing, if requested by a Participating Broker-
Dealer, the Issuer agrees (x) to use its best efforts to keep the Exchange
Registration Statement continuously effective for a period of up to six months
after the Consumma-
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tion Date or such earlier date as each Participating Broker-Dealer shall have
notified the Issuer in writing that such Participating Broker-Dealer has resold
all Exchange Notes acquired in the Exchange Offer, (y) to comply with the
provisions of Section 5 of this Agreement, as they relate to the Exchange Offer
and the Exchange Registration Statement, and (z) to deliver to such
Participating Broker-Dealer a "cold comfort" letter of the independent public
accountants of the Issuer and a legal opinion as to matters reasonably requested
by such Participating Broker-Dealer relating to the Exchange Registration
Statement and the related Prospectus and any amendments or supplements thereto.
(f) The Initial Purchaser shall have no liability to any Participating
Broker-Dealer with respect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the date of the original issuance of the Notes.
(h) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that neither the Exchange Notes, the Private Exchange
Notes nor the Notes will have the right to vote or consent as a separate class
on any matter.
3. Shelf Registration
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(a) If (i) the Issuer is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by any applicable law or applicable interpretation of the
staff of the SEC or (ii) any holder of a Note notifies the Issuer on or prior to
the 30th day following the Issue Date that (A) due to a change in law or policy
it is not entitled to participate in the Exchange Offer, (B) due to a change in
law or policy it may not resell Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Registration Statement is not ap-
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propriate or available for such resales by such holder or (C) it owns Notes
(including the Initial Purchaser that holds Notes as part of an unsold allotment
from the original offering of the Notes) acquired directly from an Issuer or an
Affiliate of an Issuer or (iii) any holder of Private Exchange Notes so requests
after the consummation of the Private Exchange or (iv) the Issuer has not
consummated the Exchange Offer within 150 days after the Issue Date (each such
event referred to in clauses(i) through (iv), a "Shelf Filing Event"), the
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Issuer shall cause to be filed with the SEC pursuant to Rule 415 a shelf
registration statement (the "Shelf Registration Statement") prior to the later
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of (x) 60 days after the Issue Date or (y) 60 days after the occurrence of such
Shelf Filing Event, relating to all Transfer Restricted Notes (the "Shelf
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Registration") the holders of which have provided the information required
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pursuant to Section 3(b) hereof (provided that if the Shelf Filing Event arises
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pursuant to clause (iv) above, the Issuer shall file the Shelf Registration
Statement on or prior to 151st day after the Issue Date), and shall use its best
efforts to have the Shelf Registration Statement declared effective by the SEC
as promptly as possible and in any event on or prior to 90 days after the filing
of such Shelf Filing Event. In such circumstances, the Issuer shall use its best
efforts to keep the Shelf Registration Statement continuously effective under
the Securities Act, until (A) 24 months following the Issue Date or (B) if
sooner, the date immediately following the date that all Transfer Restricted
Notes covered by the Shelf Registration Statement have been sold pursuant
thereto or otherwise cease to be Transfer Restricted Notes (the "Effectiveness
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Period"); provided that the Effectiveness Period shall be extended to the
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extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174.
(b) No holder of Transfer Restricted Notes may include any of
its Transfer Restricted Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such holder furnishes to the Issuer in writing,
within 30 days after receipt of a request therefor, such information as the
Issuer may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included therein. No holder
of Transfer Restricted Notes shall be entitled to Additional Interest pursuant
to Section 4 hereof unless and until such holder shall have provided all such
reasonably requested information. Each holder of Transfer Restricted Notes 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
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make the information previously furnished to the Issuer by such holder not
materially misleading.
4. Additional Interest
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(a) The parties hereto agree that the holders of Transfer Restricted
Notes will suffer damages if the Issuer fails to fulfill its obligations
pursuant to Section 2 or Section 3, as applicable, and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event that
(i) the applicable Registration Statement is not filed with the SEC on or prior
to the date specified herein for such filing, (ii) the applicable Registration
Statement has not been declared effective by the SEC on or prior to the date
specified herein for such effectiveness after such obligation arises, (iii) if
the Exchange Offer is required to be Consummated hereunder, the Issuer has not
exchanged Exchange Notes for all Notes validly tendered and not validly
withdrawn in accordance with the terms of the Exchange Offer by the Consummation
Date or (iv) the applicable Registration Statement is filed and declared
effective but shall thereafter cease to be effective or usable in connection
with the Exchange Offer or resales of Transfer Restricted Notes during a period
in which it is required to be effective hereunder without being succeeded
immediately by any additional Registration Statement covering the Notes, the
Exchange Notes or the Private Exchange Notes, as the case may be, which has been
filed and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default"), then the interest rate on Transfer Restricted
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Notes will increase ("Additional Interest"), with respect to the first 90-day
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period immediately following the occurrence of such Registration Default, by
0.5% per annum and will increase by an additional 0.5% per annum with respect to
each subsequent 90-day period until such Registration Default has been cured, up
to a maximum amount of 2.0% per annum with respect to all Registration Defaults.
Following the cure of a Registration Default, the accrual of Additional Interest
with respect to such Registration Default will cease and upon the cure of all
Registration Defaults the interest rate will revert to the original rate.
(b) The Issuer shall notify the Trustee and paying agent under
the Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Issuer shall pay the Additional
Interest due on the Transfer Restricted Notes by depositing with the paying
agent (which shall not be the Issuer for
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these purposes) for the Transfer Restricted Notes, in trust, for the benefit of
the holders thereof, prior to 11:00 A.M. on the next interest payment date
specified by the Indenture (or such other indenture), sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date specified by the Indenture (or such other indenture)
to the record holders entitled to receive the interest payment to be made on
such date. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the damages
that will be suffered by holders of Transfer Restricted Notes by reason of the
happening of any Registration Default.
5. Registration Procedures
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In connection with the Issuer's registration obligations hereunder,
the Issuer shall effect such registrations on the appropriate form available for
the sale of the Notes, the Exchange Notes or Private Exchange Notes, as
applicable, to (i) in the case of the Exchange Offer, permit the exchange of
Exchange Notes for Notes in the Exchange Offer and, if applicable, resales of
Exchange Notes by Participating Broker-Dealers and (ii) in the case of a Shelf
Registration, permit the sale of the applicable Transfer Restricted Notes in
accordance with the method or methods of disposition thereof specified by the
holders of such Transfer Restricted Notes, and pursuant thereto the Issuer shall
as expeditiously as possible:
(a) In the case of a Shelf Registration, a reasonable period of
time prior to the initial filing of a Shelf Registration Statement or
Prospectus and a reasonable period of time prior to the filing of any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), furnish to
the holders of the Transfer Restricted Notes included in such Shelf
Registration Statement, their counsel and the managing underwriters, if
any, copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by reference)
will be subject to the review of such holders, their Special Counsel and
such underwriters, if any, and cause the officers and directors of the
Issuer, counsel to the Issuer and independent certified public accountants
to the Issuer to respond to such reasonable in-
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quiries as shall be necessary, in the opinion of respective counsel to such
holders and such underwriters, to conduct a reasonable investigation within
the meaning of the Securities Act; provided that the foregoing inspection
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and information gathering shall be coordinated on behalf of any other
persons, by one counsel designated by and on behalf of such other persons;
provided, however, that the Issuer shall not be deemed to have kept a Shelf
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Registration Statement effective during the applicable period if it
voluntarily takes any unreasonable action or voluntarily fails to take any
reasonable action that results in holders of the Transfer Restricted Notes
covered thereby not being able to sell such Transfer Restricted Notes
pursuant to Federal securities laws during that period. The Issuer shall
not file any such Shelf Registration Statement or related Prospectus or any
amendments or supplements thereto which the holders of a majority in
principal amount of the Transfer Restricted Notes included in such Shelf
Registration Statement shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period required hereunder; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or
in such Prospectus as so supplemented;
(c) Notify the holders of Transfer Restricted Notes to be sold
or, in the case of an Exchange Offer, tendered for, their Special Counsel
and the managing underwriters, if any, promptly, and (if requested by any
such person), confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to be
filed, and (B) with respect to a Registration Statement or any post-
effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other Federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus
or for additional information, (iii)
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of the issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order or injunction suspending
or enjoining the use of a Prospectus or the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of
the receipt by the Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of any of
the Notes, Exchange Notes or Private Exchange Notes for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, and (v) of the happening of any event or information becoming
known to the Issuer that makes any statement made in a Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement,
Prospectus or documents so that it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading, and
that in the case of a Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (vi) of the
determination by the Issuer that a post-effective amendment to a
Registration Statement would be appropriate;
(d) Use its best efforts to avoid the issuance of or, if issued,
obtain the withdrawal of any order enjoining or suspending the use of a
Prospectus or the effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of
any of the Notes, Exchange Notes or Private Exchange Notes for sale in any
jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the
holders of a majority in aggregate principal amount of the Transfer
Restricted Notes being sold pursuant to such Shelf Registration Statement,
(i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
holders reasonably believe should be included therein, and (ii) make all
required filings of such Prospectus supplement or such post-
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effective amendment under the Securities Act as soon as practicable after
the Issuer has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment and (iii) supplement
or make amendments to such Registration Statement;
(f) Upon written request to the Issuer by a holder of Notes, Exchange
Notes or Private Exchange Notes to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and each managing
underwriter, if any, without charge, furnish at least one conformed copy of
such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested
(including those previously furnished or incorporated by reference) as soon
as practicable after the filing of such documents with the SEC;
(g) Deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration
Statement, their Special Counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons
reasonably request; and the Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
holders of Transfer Restricted Notes and the underwriters, if any, in
connection with the offering and sale of the Transfer Restricted Notes in
accordance with the terms thereof and with U.S. Federal securities laws and
Blue Sky laws covered by such Prospectus and any amendment or supplement
thereto;
(h) Prior to any public offering of Notes, Exchange Notes or Private
Exchange Notes, use its best efforts to register or qualify or cooperate
with the holders of Notes, Exchange Notes or Private Exchange Notes to be
sold or tendered for, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Notes, Exchange Notes or
Private Exchange Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any such holder or
underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept
-16-
effective hereunder and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Notes,
Exchange Notes or Private Exchange Notes covered by the applicable
Registration Statement; provided, however, that the Issuer shall not be
-------- -------
required to (i) qualify generally to do business in any jurisdiction where
it is not then so qualified or (ii) take any action which would subject it
to general service of process or to taxation in any jurisdiction where it
is not so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Notes that will result in such securities no longer being Transfer
Restricted Notes, cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Transfer Restricted Notes to be in such denominations and registered in
such names as the managing underwriters, if any, or such holders may
request at least two Business Days prior to any sale of Transfer Restricted
Notes;
(j) Upon the occurrence of any event contemplated by Section 5(c)(v),
as promptly as practicable, prepare a supplement or amendment, including,
if appropriate, a post-effective amendment, to each Registration Statement
or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not 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,
in light of the circumstances under which they were made, not misleading;
(k) Use its best efforts to cause the Notes, Exchange Notes or
Private Exchange Notes covered by the applicable Registration Statement to
be rated with the appropriate rating agencies, if so requested by the
holders of a majority in aggregate principal amount of Transfer Restricted
Notes being sold pursuant to such Registration Statement or the managing
underwriter or underwriters, if any.
-17-
(l) Prior to the effective date of the Exchange Registration
Statement, to provide a CUSIP number for the Exchange Notes (and Private
Exchange Notes, if applicable);
(m) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and
take all such other reasonable actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
holders of a majority in aggregate principal amount of the Transfer
Restricted Notes being sold) in order to expedite or facilitate the
disposition of such Transfer Restricted Notes, and, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration, (i) make such representations and
warranties to the holders of such Transfer Restricted Notes and the
underwriters, if any, with respect to the business of the Issuer and its
subsidiaries (including with respect to businesses or assets acquired or to
be acquired by any of them), and the Shelf Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when customarily requested; (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 Special Counsel to the holders of the Transfer
Restricted Notes being sold), addressed to each selling holder of Transfer
Restricted Notes and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Special Counsel
and the managing underwriters, in any; (iii) obtain customary "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Issuer (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or of any
business acquired by the Issuer or any such subsidiary for which financial
statements and financial data is, or is required to be, included in the
Shelf Registration Statement), addressed (where reasonably possible) to
each selling holder of Transfer Restricted Notes and each of the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in
-18-
"cold comfort" letters in connection with underwritten offerings; (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to holders of a
majority in aggregate principal amount of Transfer Restricted Notes covered
by such Shelf Registration Statement and the managing underwriters, if
any); and (v) deliver such documents and certificates as may be reasonably
requested by the holders of a majority in aggregate principal amount of the
Transfer Restricted Notes being sold, their Special Counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuer;
(n) In the case of a Shelf Registration, make available for inspection
by any selling holder of Transfer Restricted Notes being sold, any
underwriter participating in any such disposition of Transfer Restricted
Notes, if any, and any attorney, accountant or other agent retained by any
such selling holders or underwriter, (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
----------
business hours, all relevant financial and other records, pertinent
corporate documents and instruments of the Issuer and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
-------
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Issuer and its subsidiaries to
supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the Issuer
determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid
or correct a misstatement or omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector
and arising out of, based upon, relating to, or involving this Agree-
-19-
ment, or any transactions contemplated hereby or arising hereunder, or (iv)
the information in such Records has been made generally available to the
public. Each selling holder of such Transfer Restricted Securities will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuer unless
and until such information is generally available to the public. Each
selling holder of such Transfer Restricted Securities will be required to
further agree that it will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Issuer
and allow the Issuer to undertake appropriate action to prevent disclosure
of the Records deemed confidential at the Issuer's sole expense;
(o) Provide an indenture trustee for the Notes and/or the Exchange
Notes and Private Exchange Notes, as the case may be, and cause an
indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement relating to the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection therewith, cooperate with
the Trustee and the holders of the Notes and/or the Exchange Notes and
Private Exchange Notes, to effect such changes to the Indenture, if any, as
may be required for the Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable efforts to cause the
Trustee to execute, all customary 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;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158, no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Transfer Restricted
Notes are sold to underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter after the
effective date of a Regis-
-20-
tration Statement, which statement shall cover said period, consistent with
the requirements of Rule 158;
(q) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuer, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
holders of Exchange Notes of Private Exchange Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or Private Exchange Notes, as the case may be, and the
related indenture constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their respective
terms;
(r) Cooperate with each seller of Transfer Restricted Notes covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Transfer Restricted Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and
(s) Use its best efforts to take all other steps reasonably necessary
to effect the registration of the Transfer Restricted Notes covered by a
Registration Statement contemplated hereby.
The Issuer may require a holder of Transfer Restricted Notes to be
included in a Registration Statement to furnish to the Issuer such information
regarding the distribution of such Transfer Restricted Notes as is required by
law to be disclosed in such Registration Statement and the Issuer may exclude
from such Registration Statement the Transfer Restricted Notes of any holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
In the case of a Shelf Registration pursuant to Section 3 hereof, each
holder of Transfer Restricted Notes agrees by acquisition of such Transfer
Restricted Notes that, upon receipt of any notice from the Issuer of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(iv) or 5(c)(v) hereof, such holder will forthwith discontinue disposition
of such Transfer Restricted Notes covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in
-21-
writing by the Issuer that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such
Prospectus.
6. Registration Expenses
---------------------
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer whether or not
any Registration Statement is filed or becomes effective and whether or not any
Notes, Exchange Notes or Private Exchange Notes are issued or sold pursuant to
any Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with state securities or Blue Sky laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Notes, Exchange Notes and Private Exchange Notes in a form eligible for deposit
with The Depository Trust Company and of printing Prospectuses), (iii)
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Issuer and the Special Counsel (not to exceed
one firm of counsel (in addition to appropriate local counsel)) and out-of-
pocket expenses (other than legal expenses) of holders of Transfer Restricted
Notes incurred in connection with the registration and sale of such notes
pursuant to a Shelf Registration Statement or in connection with the exchange
thereof pursuant to the Exchange Offer, (v) fees and disbursements of all
independent certified public accountants referred to in Section 2(e) and Section
5(l)(iii) hereof (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, if any, and any fees associated with making the
Transfer Restricted Notes eligible for trading through The Depository Trust
Company, (vii) Securities Act liability insurance, if the Issuer desires such
insurance, (viii) fees and expenses of all other persons retained by the Issuer,
(ix) internal expenses of the Issuer (including, without limitation, all
salaries and expenses of officers and employees of the Issuer performing legal
or accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securi-
-22-
ties exchange, if applicable, and (xii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
7. Indemnification
---------------
(a) The Issuer agrees to indemnify and hold harmless each
Holder of Transfer Restricted Notes, the affiliates, directors, officers,
agents, representatives and employees of each such person or its affiliates, and
each other Person, if any, who controls any such Person or its affiliates within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant"), from and against any and all losses,
-----------
claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other expenses actually incurred in connection with any suit,
action or proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Issuer will
-------- -------
not be required to indemnify a Participant if (i) such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Issuer in writing by or on behalf
of such Participant expressly for use therein or (ii) if such Participant sold
to the person asserting the claim the Transfer Restricted Notes which are the
subject of such claim and such untrue statement or omission or alleged untrue
statement or omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceeding and it is established by the Issuer in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Transfer Restricted Notes sold to such Person
if required by applicable law, unless such failure to deliver or
-23-
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuer with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuer, its directors and officers and each
Person who controls the Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuer to each Participant, but only (i) with
reference to information relating to such Participant furnished to the Issuer in
writing by such Participant expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus
or (ii) with respect to any untrue statement or representation made by such
Participant in writing to the Issuer. The liability of any Participant under
this paragraph shall in no event exceed the proceeds received by such
Participant from sales of Transfer Restricted Notes giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified Person")
------------------
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
-------------------
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
-------- -------
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in
-24-
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that, unless there exists a
conflict among Indemnified Persons, the Indemnifying Person shall not, in
connection with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed promptly as they are incurred. Any
such separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Transfer Restricted Notes sold by all such Participants and any such separate
firm for the Issuer, its directors, its officers and such control Persons of the
Issuer shall be designated in writing by the Issuer. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses actually incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; provided, however, that the
-------- -------
Indemnifying Person shall not be liable for any settlement effected without its
consent pursuant to this sentence if the Indemnifying Person is contesting, in
good faith, the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes
an unconditional written release of such Indemnified Person, in form and
substance rea-
-25-
sonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the offering of
the Notes or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the parties
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 on the
one hand or such Participant or such other Indemnified Person, as the case may
be, on the other, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
--------
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified
-26-
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Transfer Restricted
Notes exceeds the amount of any damages that such Participant has otherwise been
required to pay or has paid 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 Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rule 144A
---------
The Issuer covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
the Issuer is not required to file such reports, it will, upon the request of
any holder of Transfer Restricted Notes, make publicly available annual reports
and such information, documents and other reports of the type specified in
Sections 13 and 15(d) of the Exchange Act. The Issuer further covenants for so
long as any Transfer Restricted Notes remain outstanding, to make available to
any holder or beneficial owner of Transfer Restricted Notes in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted Notes
from such holder or beneficial owner the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer Restricted
Notes pursuant to Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Transfer Restricted 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 administer the offering
will be selected by the holders of a majority in aggregate principal amount of
the Transfer Restricted Notes included in such offering and reasonably
acceptable to the Issuer.
-27-
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Transfer Restricted Notes on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Issuer has not entered, as
--------------------------
of the date hereof, and the Issuer will not, after the date of this Agreement,
enter into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the holders of Transfer Restricted Notes
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 any of the Issuer's other
issued and outstanding securities under any such agreements. The Issuer has not
entered and the Issuer will not enter into any agreement with respect to any of
its securities which will grant to any Person piggy-back registration rights
with respect to a Registration Statement.
(b) Adjustments Affecting Transfer Restricted Notes. The Issuer
-----------------------------------------------
will not, directly or indirectly, take any action with respect to the Transfer
Restricted Notes as a class that would adversely affect the ability of the
holders of Transfer Restricted Notes to include such Transfer Restricted Notes
in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
----------------------
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the holders of not less than a majority in aggregate
principal amount of the then outstanding Transfer Restricted Notes; provided,
--------
however, that Section 7 and this Section 10(c) may not be amended, modified or
-------
supplemented without the prior written consent of each holder of Transfer
Restricted (including any person who was a holder of Transfer Restricted Notes,
disposed of pursuant to any Registration
-28-
Statement). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Transfer Restricted Notes whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other holders of Transfer
Restricted Notes may be given by holders of at least a majority in aggregate
principal amount of the Transfer Restricted Notes being sold by such holders
pursuant to such Registration Statement; provided, however, that the provisions
-------- -------
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(d) Notices.
--------
All notices and other communications (including without limitation any
notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:
1. if to a holder of Transfer Restricted Notes, at the most current
address of such holder set forth on the records of the registrar under the
Indenture, with a copy in like manner to the Initial Purchaser as follows:
BT Securities Corporation
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
2. if to the Initial Purchaser, at the addresses specified in
Section 10(d)(1);
3. if to the Issuer, as follows:
Leslie's Poolmart, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
-29-
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 and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for express
assignment, subsequent holders of Notes, Exchange Notes and Private Exchange
Notes and each Indemnified Person.
(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) Governing Law; Submission to Jurisdiction. THIS AGREEMENT
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SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK. THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(h) Severability. The remedies provided herein are cumulative
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and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
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(i) Headings. The headings in this Agreement are for
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convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(j) Notes Held by The Issuer or its Affiliates. Whenever the
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consent or approval of Holders of a specified percentage of Transfer Restricted
Notes is required hereunder, Transfer Restricted Notes held by the Issuer or its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party beneficiaries. Holders of Transfer Restricted
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Notes are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such persons.
(l) Entire Agreement. This Agreement, together with the
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Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer with respect to
the Notes, the Exchange Notes and the Private Exchange Notes. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
THE ISSUER:
LESLIE'S POOLMART, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
THE INITIAL PURCHASER:
BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
