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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of August 17, 1993
by and among
THE HANOVER COMPANIES,
THE HORN & HARDART COMPANY,
and
SUN LIFE INSURANCE COMPANY OF AMERICA
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This Registration Rights Agreement (the "Agreement") is
made and entered into as of August 17, 1993, by and among THE HANOVER
COMPANIES, a Nevada corporation (the "Company"), THE HORN & HARDART
COMPANY, a Nevada corporation (the "Guarantor"), and SUN LIFE INSURANCE
COMPANY OF AMERICA (the "Purchaser").
This Agreement is made pursuant to the Purchase
Agreement, dated as of August 17, 1993, among the Company, the Guarantor,
certain subsidiaries of the Company and the Purchaser (the "Purchase
Agreement"). In order to induce the Purchaser to enter into the Purchase
Agreement, the Company and the Guarantor have agreed to provide the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the Closing under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Agent: Any Person authorized to act and who acts on
behalf of the Purchaser or any holder of Registrable Securities with
respect to the transactions contemplated by this Agreement, the Indenture
(as hereinafter defined), the Purchase Agreement or the Collateral
Documentation.
Company: The Person named as such above, its successors
and assigns, including without limitation pursuant to the Reorganization.
Completion Date: See Section 3.
Consummate: The term "Consummate" a Registered Exchange
Offer hereunder shall mean (a) the filing of and causing to become
effective under the Securities Act of a Registration Statement covering
the Registered Exchanged Offer, (b) the maintenance of such Registration
Statement continuously effective for a period of not less than the period
required under applicable Federal and state securities laws (provided that
in no event shall such Registered Exchange Offer remain open and the
Registration Statement relating thereto remain continuously effective, in
each case, for less than 20 business days), and (c) the delivery by the
Company to the Registrar under the Indenture of Series B Notes in the same
aggregate principal amount as the aggregate principal amount of Series A
Notes tendered by holders pursuant to a Registered Exchange Offer.
Consummation Date: See Section 3.
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Effectiveness Date: See Section 3.
Exchange Act: The Securities Exchange Act of 1934, as
amended from time to time.
Guarantor: The Person named as such above, its
successors and assigns, including without limitation pursuant to the
Reorganization.
Guaranty: The unconditional guaranty of the Guarantor
endorsed on each of the Notes.
Indemnified Holder: See Section 9(a).
Indenture: The Indenture dated as of August 17, 1993
among the Company, the Guarantor, certain subsidiaries of the Company and
First Trust National Association, as Trustee.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and any debt securities
issued in exchange or substitution for the Series A Notes.
Person: An individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
Piggyback Registration: See Section 5.
Prospectus: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of (a) the Series B
Notes pursuant to a Registered Exchange Offer or (b) the Transfer
Restricted Securities, pursuant to any other registrations, as the case
may be, covered by the Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and
all material incorporated by reference in such prospectus.
Registered Exchange Offer: The registration by the
Company and the Guarantor under the Securities Act of all of the Series B
Notes pursuant to a Registration Statement under which the Company offers
each holder of Transfer Restricted Securities the opportunity to exchange
all outstanding Transfer Restricted Securities held by such holder for
Series B Notes in an aggregate principal amount equal to the aggregate
principal amount of Transfer Restricted Securities held by such holder.
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Registrable Securities: The Notes and the Guaranties;
provided that a Note and the related Guaranty cease to be Registrable
Securities when each is no longer a Transfer Restricted Security.
Registration Expenses: See Section 8.
Registration Statement: Any registration statement of
the Company or the Guarantor which covers any of the Series B Notes and
related Guaranties or the Transfer Restricted Securities, as the case may
be, pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such Registration Statement.
Reorganization: The Reorganization of the Company and
the Guarantor as described in the Registration Statement on Form S-4 (File
No. 33-61252) of Hanover Direct, Inc., a Delaware corporation.
Securities Act: The Securities Act of 1933, as amended
from time to time.
SEC: The Securities and Exchange Commission.
Series A Notes: The 9.25% Senior Subordinated Notes,
Series A, being sold and issued pursuant to the Purchase Agreement and the
Indenture in an aggregate principal amount of $20,000,000.
Series B Notes: The 9.25% Senior Subordinated Notes,
Series B, to be issued and offered in exchange for the Series A Notes
pursuant to a Registered Exchange Offer and the Indenture.
Shelf Registration: See Section 3.
TIA: The Trust Indenture Act of 1939.
Transfer Restricted Securities: The Series A Notes and
the related Guaranties upon original issuance thereof, and at all times
subsequent thereto, until, in the case of any such Series A Notes and
Guaranties, the earlier of the following: (i) such Series A Notes and
Guaranties have been effectively registered under Section 5 of the
Securities Act and disposed of in accordance with the Registration
Statement covering it or (ii) such Series A Notes and Guaranties have been
distributed to the public pursuant to Rule 144 (or any similar provisions
then in force) of the Securities Act.
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Trustee: The Trustee under the Indenture.
underwritten registration or underwritten offering: A
registration in which securities of the Company or the Guarantor are sold
to an underwriter for reoffering to the public.
2. Securities Subject to this Agreement
(a) Registrable Securities. The securities entitled
to the benefits of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is
deemed to be a holder of Registrable Securities whenever such Person is
the beneficial owner of Registrable Securities. The Company is entitled
to treat the record holder of Registrable Securities as beneficial owner
of Registrable Securities unless otherwise notified by such holder.
3. Shelf Registration
(a) Timing of Filing, Effectiveness and Period of
Usability. Subject to the provisions of Section 4 hereof, the Company and
the Guarantor shall file on or before the date 180 days from the date of
this Agreement, and thereafter shall use their best efforts to cause to be
declared effective as soon as possible but in any event on or before the
date 300 days from the date of this Agreement, a "shelf" Registration
Statement (a "Shelf Registration") on any appropriate form pursuant to
Rule 415 (or similar rule that may be adopted by the SEC) under the
Securities Act for all the Registrable Securities, which form shall be
available for the sale of the Registrable Securities in accordance with
the intended method or methods of distribution thereof.
Except as provided in Section 7(k) of this Agreement and
the last paragraph of Section 7, each of the Company and the Guarantor
agrees to use its best efforts to keep the Registration Statement
continuously effective and usable for resale of Registrable Securities for
a period of 730 days from the date the Shelf Registration is declared
effective by the SEC or such shorter period which will terminate when all
the Registrable Securities covered by such Registration Statement have
been sold pursuant to such Registration Statement or when all Registrable
Securities otherwise have been sold pursuant to Rule 144 or are freely
tradable in essentially the same manner as contemplated in Section 4
below.
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(b) Additional Interest for Illiquidity.
(1) In addition to the interest required to be paid
pursuant to paragraph 1(a) of the Notes, if a Shelf Registration
or a Registered Exchange Offer shall not have been declared
effective by the SEC on or before the date 300 days from the date
of this Agreement, then on that date and thereafter interest
shall accrue with respect to the Notes that are Transfer
Restricted Securities at the rate of one quarter of one percent
(.25%) per annum, which interest shall be payable by the Company
in cash directly to the holders thereof on each of the Interest
Payment Dates set forth on the Notes after which any additional
interest accrues pursuant to this subsection (1) of this Section
3(b), in the manner and subject to the same terms and conditions
set forth in the Indenture, as nearly as may be as though the
interest rate provided in paragraph 1(a) of the Notes had been
increased by one quarter of one percent (.25%) per annum. Such
additional interest shall cease to accrue on and after the date
on which a Shelf Registration or a Registered Exchange Offer is
declared effective by the SEC (the "Effectiveness Date"), and any
such additional interest accrued on a Note but unpaid on such
Effectiveness Date shall be due and payable on the Interest
Payment Date next succeeding such date to the holder of record of
such Note at the close of business on the date preceding such
date.
(2) In addition to the interest required to be paid
pursuant to subsection (1) of this Section 3(b) and pursuant to
paragraph 1(a) of the Notes, if neither (i) a Shelf Registration
shall have been declared effective pursuant to Section 3(a)
hereof on or before the date 300 days from the date of this
Agreement nor (ii) a Registered Exchange Offer shall have been
Consummated pursuant to Section 4 hereof on or before the date
330 days from the date of this Agreement, then on the date 331
days from the date of this Agreement and thereafter interest
shall accrue with respect to the Notes that are Transfer
Restricted Securities at the rate of one quarter of one percent
(.25%) per annum, which interest shall be payable by the Company
in cash directly to the holders thereof on each of the Interest
Payment Dates set forth on the Notes after which any additional
interest accrues pursuant to this subsection (2) of this Section
3(b), in the manner and subject to the same terms and conditions
set forth in the Indenture, as nearly as may be as though the
interest rate provided in paragraph 1(a) of the Notes had been
increased by one quarter of one percent (.25%) per annum. The
rate of additional interest shall continue to increase by an
additional one quarter of one
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percent (.25%) per annum, on a cumulative basis, on each
subsequent Interest Payment Date until a Shelf Registration has
been declared effective or a Registered Exchange Offer has been
Consummated. Such additional interest shall cease to accrue on
and after the earlier of (i) the Effectiveness Date of a Shelf
Registration or (ii) the date a Registered Exchange Offer is
Consummated (the "Consummation Date"), and any such additional
interest accrued on a Note but unpaid on such Effectiveness Date
or Consummation Date, as the case may be, shall be due and
payable on the Interest Payment Date next succeeding such date to
the holder of record of such Note at the close of business on the
date preceding such date.
(3) The Guarantor hereby agrees to guarantee
unconditionally the payment by the Company of any additional
interest pursuant to this Section 3(b), upon the same terms and
conditions as set forth in the Guaranty as nearly as may be as
though the interest rate provided in paragraph 1(a) of the Notes
had been increased accordingly.
(c) Selection of Underwriters. If at any time or
from time to time any of the holders of the Registrable Securities covered
by the Registration Statement desire to sell Registrable Securities 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 Registrable
Securities included in such offering; provided that such investment
bankers and managers must be reasonably satisfactory to the Company.
4. Registered Exchange Offer
The Company and the Guarantor may, at their option,
Consummate a Registered Exchange Offer. If the Company or the Guarantor
elect to consummate a Registered Exchange Offer and file on or before the
date 180 days from the date of this Agreement a Registration Statement for
such purpose, the obligations of the Company and the Guarantor to file a
"shelf" Registration Statement pursuant to Section 3(a) shall be suspended
until the date 330 days from the date of this Agreement; provided,
however, that payment of additional interest for illiquidity pursuant to
Section 3 shall apply without regard to this sentence. Upon Consummation,
such Registered Exchange Offer shall satisfy and be in lieu of any and all
obligations of each of the Company and the Guarantor set forth in Section
3 above if (i) the securities received by such holders of Registrable
Securities in the Registered Exchange Offer are, upon receipt, tradable by
each such holder (other than a holder which is an affiliate of the Company
or the Guarantor at any time on or
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prior to the Consummation Date) without restriction under the Securities
Act and the Exchange Act and without material restrictions under the blue
sky or securities laws of substantially all of the States and (ii) none of
the holders of Registrable Securities abstains from participation in a
Registered Exchange Offer based on a written opinion of counsel, the basis
and reasoning of which shall be set forth in the opinion and a copy of
which opinion shall be sent to the Company, that either (a) such
participation is not legally permitted or (b) a court decision or
administrative action may reasonably be expected to have a material
adverse effect on such holder in the event that such holder participates
in a Registered Exchange Offer. The Company shall give written notice
that a Registration Statement filed in connection with a Registered
Exchange Offer is effective to each holder of Registrable Securities
promptly after receiving notice of effectiveness from the SEC. The
Registered Exchange Offer shall be on the appropriate form permitting
registration of the Series B Notes to be offered in exchange for the
Transfer Restricted Securities. Upon the making of any such Registered
Exchange Offer in accordance with this Section 4, the Company and the
Guarantor may omit to comply with such of the procedures set forth in
Section 7 hereof as may be appropriate under the circumstances without
materially and adversely affecting the interest of the holders of
Registrable Securities under this Agreement, taken as a whole, but the
other provisions of this Agreement shall continue to apply as set forth in
such provisions. Notwithstanding the foregoing, the Company and the
Guarantor agree to use their best efforts to Consummate a Registered
Exchange Offer as soon as practicable after receipt of a written request
of Sun Life Insurance Company of America to proceed with the Registered
Exchange Offer on behalf of the holders of Registrable Securities eligible
to participate while concurrently maintaining a Shelf Registration
pursuant to Section 3 hereof for holders of Registrable Securities not
eligible to participate pursuant to the terms of this Section 4.
5. Piggyback Registration
(a) Right to Include Registrable Securities. If at
any time the Company or the Guarantor proposes to register any of its debt
or equity securities (other than a registration effected solely to
implement an employee benefit plan, a transaction to which Rule 145
promulgated under the Securities Act is applicable or a transaction
eligible to be registered on Form S-4 or any successor form) under the
Securities Act, whether or not for its own account, and there are Transfer
Restricted Securities outstanding which, at such time, cannot be sold
under the Shelf Registration or Rule 144(k) (or any similar provision then
in force), then the Company or the Guarantor, as the case may be, shall
give written notice of such proposed filings to the holders
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of Transfer Restricted Securities at least 20 days before the anticipated
filing date. Such notice shall offer each such holder the opportunity to
register such amount of Transfer Restricted Securities as each such holder
may request (a "Piggyback Registration"). Subject to the provisions of
Section 5(b) below, the Company or the Guarantor, as may be the case,
shall include in each such Piggyback Registration all Transfer Restricted
Securities with respect to which the Company or the Guarantors, as may be
the case, have received written requests for inclusion therein within 15
business days after notice has been duly given to the applicable holder.
The holder of Transfer Restricted Securities shall be permitted to
withdraw all or any part of the Transfer Restricted Securities from a
Piggyback Registration at any time prior to the effective date of such
Piggyback Registration.
(b) Priority on Piggyback Registration. Each of the
Company and the Guarantor shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit
holders of Transfer Restricted Securities requested to be included in the
registration for such offering to include all such Transfer Restricted
Securities in such offering on the same terms and conditions as any other
securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such offering deliver(s) a written
opinion to the holders of Transfer Restricted Securities to the effect
that in its reasonable judgment, the total amount or nature of securities
which such holders, the Company, the Guarantor, and any other persons or
entities having registration rights intend to include in such offering is
such as to materially and adversely affect the success of such offering,
then the amount of Transfer Restricted Securities to be offered for the
account of holders of Transfer Restricted Securities shall be reduced pro
rata among such holders on the basis of the dollar amount of Transfer
Restricted Securities requested to be included therein by each such
holder, to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter or underwriters; provided, however, that if securities are
being offered for the account of other persons or entities as well as the
Company or the Guarantor by nature of their also having "piggyback"
registration rights, such reduction, to the extent permitted by the terms
of such registration rights, shall be made on a pro rata basis with such
other securities.
(c) Registration of Securities Other than Transfer
Restricted Securities. Except for registration rights that may be granted
with respect to equity securities that may be resold pursuant to the
Guarantor's registration statement on Form S-3 (No. 33-66394), which was
declared effective by the SEC on
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August 3, 1993, without the written consent of the holders of a majority
in aggregate principal amount of the then outstanding Transfer Restricted
Securities, the Company and the Guarantor shall not, after the date
hereof, grant to any Person the right to request the Company or the
Guarantor to register any securities of any of them under the Securities
Act if the terms thereof would adversely affect the registration rights
granted to the holders of Transfer Restricted Securities pursuant to this
Agreement.
6. Hold-Back Agreements
(a) Restrictions on Public Sale by Holder of
Registrable Securities. Each holder of Registrable Securities whose
Registrable Securities are covered by a Registration Statement filed
pursuant to Section 3 or 5 hereof agrees, if requested by the managing
underwriters in an underwritten offering, not to effect any public sale or
distribution of securities of the same class as the securities included in
such Registration Statement, including a sale pursuant to Rule 144 under
the Securities Act (except as part of such underwritten registration),
during the 10-day period prior to, and during the 90-day period beginning
on, the closing date of each underwritten offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the
Company or the managing underwriters.
The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statute
or regulation from entering into any such agreement; provided that any
such holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of
the applicable class of Registrable Securities commencing on the date of
sale of such applicable class of Registrable Securities pursuant to the
underwritten offering unless it has provided 45 days' prior written notice
of such sale or distribution to the underwriter or underwriters.
(b) Restrictions on Public Sale by the Company and
Others.
Each of the Company and the Guarantor agrees:
(1) not to effect any public or private sale or
distribution of its debt securities, including a sale pursuant to
Regulation D under the Securities Act, during the 10-day period
prior to, and during the 90-day period beginning on, the closing
date of each underwritten offering made pursuant to a
Registration Statement filed under
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Section 3, to the extent timely requested in writing by the
managing underwriters (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or any
successor form to such Form), and
(2) to cause each holder of privately placed debt
securities issued by the Company or the Guarantor at any time on
or after the date of this Agreement to agree on or before the
date such securities are issued not to effect any public sale or
distribution of any such securities, including a sale pursuant to
Rule 144 under the Securities Act, during such period to the
extent timely requested in writing by the managing underwriters
of an underwritten offering made pursuant to a Registration
Statement filed under Section 3 (except as part of such
underwritten registration, if permitted).
7. Registration Procedures
In connection with the Company's and the Guarantor's
obligations to file Registration Statements pursuant to Sections 3, 4, and
5 hereof, the Company and the Guarantor will use their respective best
efforts to effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company and the Guarantor
will as expeditiously as possible:
(a) before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, furnish to the
holders of the Registrable Securities covered by such Registration
Statement and the underwriters, if any, a copy of all such documents
proposed to be filed, which documents will be subject to the review of
such holders and underwriters, and neither the Company nor the Guarantor
will file any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall promptly and
reasonably object;
(b) prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be requested by any holder of
Registrable Securities or any underwriter of Registrable Securities or as
may be required by the rules, regulations or instructions applicable to
the registration form utilized by the Company and the Guarantor or by the
Securities Act or rules and regulations thereunder for shelf registration
or otherwise necessary to keep the Registration Statement effective for
the
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applicable period and cause the Prospectus as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(c) notify the selling holders of Registrable
Securities and the managing underwriters, if any, promptly, and (if
requested by any such Person) confirm such advice in writing,
(1) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to
the Registration Statement or any post-effective amendment, when
the same has become effective,
(2) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or
for additional information,
(3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose,
(4) if at any time, to the best knowledge of the
Company or the Guarantor, the representations and warranties of
the Company or the Guarantor contemplated by paragraph (o) below
cease to be true and correct in any material respect,
(5) of the receipt by the Company or the Guarantor
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, and
(6) of the existence of any fact known to the
Company or the Guarantor which results in the Registration
Statement, the Prospectus or any document incorporated therein by
reference containing an untrue statement of material fact or
omitting to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
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(e) if requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in
connection with an underwritten offering, promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters and the holders of a majority in aggregate principal
amount of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or
best efforts underwritten) offering of the Registrable Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(f) furnish, without charge, to (i) counsel to the
selling holders of Registrable Securities and each managing underwriter,
at least one signed copy of the Registration Statement and (ii) each
selling holder of Registrable Securities, at least one conformed copy of
the Registration Statement, and, with respect to copies furnished pursuant
to both clauses (i) and (ii) hereof, any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated by
reference);
(g) deliver to each selling holder of Registrable
Securities and the underwriters, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons may reasonably request; the Company
and the Guarantor consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and the underwriters, if any, in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable
Securities, register or qualify or cooperate with the selling holders of
Registrable Securities, the underwriters, if any, and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any seller or underwriter reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable
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Securities covered by the Registration Statement; provided that neither
the Company nor the Guarantor will be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process in any
such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of
Registrable Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of Registrable
Securities to the underwriters;
(j) use their best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(k) if any fact contemplated by paragraph (c)(6)
above shall exist, prepare a supplement or post- effective amendment to
the 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
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading; provided, however, that nothing in this
Agreement shall require the Company or the Guarantor to disclose
non-public information that, in the exercise of reasonable judgment, the
Company deems advisable not to disclose, in which case the time periods
referred to in Section 3(a) shall be extended as provided in the last
paragraph of this Section 7;
(l) use their best efforts to cause all Registrable
Securities covered by the Registration Statement to be listed on each
securities exchange on which similar securities issued by the Company or
the Guarantor are then listed, if requested by the holders of a majority
in aggregate principal amount of such Registrable Securities or the
managing underwriters, if any;
(m) use their best efforts to cause the Registrable
Securities covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the holders of a majority
in aggregate principal amount of such Registrable Securities or the
managing underwriters;
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(n) obtain a CUSIP number for all Registrable
Securities, not later than the Effectiveness Date;
(o) enter into agreements (including customary
underwriting agreements) and take all other appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities
and in such connection whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten registration:
(1) make such representations and warranties to the
holders of such Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings of
similar securities;
(2) obtain opinions of counsel to the Company and
the Guarantor 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 Securities being sold)
addressed to each selling holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in
underwriting offerings and such other matters as may be
reasonably requested by such holders and underwriters;
(3) obtain "cold comfort" letters and updates
thereof from the Company's and the Guarantor's independent
certified public accountants addressed to the selling holders of
Registrable Securities and the underwriters, if any, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings;
(4) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification
provisions and procedures of Section 9 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may
be reasonably requested by the holders of a majority in principal
amount of the Registrable Securities being sold and the managing
underwriters, if any, to evidence compliance with clause (k)
above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company or the Guarantor.
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The above shall be done at (i) the effectiveness of such Registration
Statement, (ii) each closing under any underwriting or similar agreement
as and to the extent required thereunder and (iii) from time to time as
may be requested by any selling holder in connection with the disposition
of Registrable Securities pursuant to such Registration Statement (except
that, if the offering is not an underwritten offering, the Company's
obligation to furnish the representations and warranties, opinions, "cold
comfort" letters and other documents and certificates required under
clauses (1), (2), (3) and (5) of this paragraph (o), other than at the
effectiveness of a Registration Statement or the closing of any such
transaction, shall be conditioned on the receipt by the Company of an
opinion of counsel to the selling holders of Registrable Securities
requesting the same to the effect that the same would assist such holders
in establishing a "due diligence" defense should such holders be deemed to
be statutory underwriters with respect to such offering);
(p) make available for inspection during normal
business hours by a representative of the holders of a majority in
principal amount of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney or accountant retained by the sellers or underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company and the Guarantor, and cause the Company's and the
Guarantor's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with the Registration Statement; provided that
all such records, information or documents shall be kept confidential by
such Persons unless disclosure of such records, information or documents
is required by court or administrative order or is generally available to
the public other than as a result of disclosure in violation of this
paragraph (p);
(q) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make generally
available to their security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act (in accordance with Rule
158 thereunder or otherwise), no later than 45 days after the end of any
12-month period (or 90 days, if such period is a fiscal year) (1)
commencing at the beginning of the fiscal quarter following that in which
Registrable Securities are sold to underwriters in an underwritten
offering, or, if not sold to underwriters in such an offering, (2)
beginning with the first month of the Company's or the Guarantor's, as the
case may be, first fiscal quarter commencing after the Effectiveness Date,
which statements shall cover said 12-month periods;
- 15 -
17
(r) use its best efforts to cause the Indenture to
be qualified under the TIA, provide an indenture trustee for the
Registrable Securities not later than the Effectiveness Date and, in
connection therewith, cooperate with the trustee under the Indenture and
the holders of the Notes 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 execute, and use their 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;
(s) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD); and
(t) promptly prior to the filing of any document
which is to be incorporated by reference into the Registration Statement
or the Prospectus (after initial filing of the Registration Statement)
provide draft copies of such document to counsel to the selling holders of
Registrable Securities and to the managing underwriters, if any, make the
Company's and the Guarantor's representatives available for discussion of
such document.
Each selling holder of Registrable Securities as to which
any registration is being effected agrees, as a condition to the
registration obligations with respect to such holder provided herein, to
furnish to the Company and the Guarantor such information regarding the
distribution of such securities as the Company or the Guarantor may from
time to time reasonably request in writing.
Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 7(k) hereof, such holder will forthwith discontinue
disposition of Registrable Securities until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
7(k) hereof, or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by the Company, such holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of
such notice. In the
- 16 -
18
event the Company shall give any such notice, the time periods mentioned
in Section 3(a) hereof shall be extended 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 each seller of Registrable Securities covered by
such Registration Statement either receives the copies of the supplemented
or amended prospectus contemplated by Section 7(k) hereof or is advised in
writing by the Company that the use of the Prospectus may be resumed.
In connection with the Registered Exchange Offer (if to
be made pursuant to Section 4 hereof):
(a) As a condition to its participation in the
Registered Exchange Offer pursuant to the terms of this Agreement, each
holder of Transfer Restricted Securities shall be required to furnish,
upon the request of the Company or the Guarantor, as applicable, prior to
the Consummation thereof a written representation to the Company or the
Guarantor, as applicable, that it is not engaged in, and does not intend
to engage in, a distribution of the Series B Notes to be received in the
Registered Exchange Offer and that it is acquiring the Series B Notes in
its ordinary course of business.
(b) Prior to effectiveness of the Registration
Statement relating to the Registered Exchange Offer, the Company or the
Guarantor, as applicable, shall provide a supplemental letter to the SEC
(i) stating that the Company or the Guarantor, as applicable, is
registering the Registered Exchange Offer in reliance on the position of
the SEC enunciated in Exxon Capital Holdings Corporation (available April
13, 1988) and Morgan Stanley and Co. Inc. (available June 5, 1991) no-
action letters and (ii) including a representation that the Company or the
Guarantor, as applicable, has not entered into any arrangement or
understanding with any Person to distribute the Series B Notes to be
received in the Registered Exchange Offer and that, to the best of the
Company's or the Guarantor's, as applicable, information and belief, each
holder participating in the Registered Exchange Offer is acquiring the
Series B Notes in its ordinary course of business and has no arrangement
or understanding with any Person to participate in the distribution of the
Series B Notes received in the Registered Exchange Offer.
(c) The Company and the Guarantor shall cause the
Indenture to be qualified under the TIA not later than the effective date
of the Registration Statement relating to the Registered Exchange Offer;
and, in connection therewith, will cooperate with the Trustee and the
holders of the Class A Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of
- 17 -
19
the TIA; and will execute, and make its reasonable best efforts to cause
such 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 such Indenture to be so qualified in a timely manner.
8. Registration Expenses
(a) All expenses incident to the Company's and the
Guarantor's performance of or compliance with this Agreement, including
without limitation:
(1) all registration and filing fees (including with
respect to filings required to be made with the NASD);
(2) fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority in principal amount of the
Registrable Securities being sold may reasonably designate);
(3) printing, messenger, telephone and delivery
expenses;
(4) fees and disbursements of counsel for the
Company, the Guarantor and for the sellers of the Registrable
Securities (subject to the provisions of Section 8(b) hereof);
(5) fees and disbursements of all independent
certified public accountants of the Company and the Guarantor
(including the expenses of any special audit necessary to satisfy
the requirements of the Securities Act and any "cold comfort"
letters required by or incident to such performance);
(6) fees and disbursements of underwriters
customarily required to be paid by the issuer or selling security
holders in underwritten public offerings of debt securities
managed by a major bracket underwriter (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to
the distribution of the Registrable Securities or legal expenses
of such underwriter or any other Person other than the Company,
the Guarantor or the selling holders);
- 18 -
20
(7) securities act liability insurance if the
Company or the Guarantor so desire;
(8) fees and expenses of other Persons retained by
the Company or the Guarantor; and
(9) NASD filing fees and expenses associated with
any NASD filing required to be made in connection with the
Registration Statement, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained in accordance with the
rules and regulations of the NASD
(all such expenses being herein called "Registration Expenses") will be
borne by the Company and the Guarantor regardless of whether the
Registration Statement becomes effective.
Each of the Company and the Guarantor will, in any event,
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred
in connection with the listing of the securities to be registered on each
securities exchange on which similar securities issued by the Company or
the Guarantor are then listed, rating agency fees and the fees and
expenses of any Person, including special experts, retained by the Company
or the Guarantor.
(b) In connection with each Registration Statement
required hereunder, the Company and the Guarantor will reimburse the
holders of Registrable Securities being registered pursuant to such
Registration Statement for the reasonable fees and disbursements of not
more than one counsel chosen by the holders of a majority in principal
amount of such Registrable Securities.
9. Indemnification
(a) Indemnification by the Company and the
Guarantor. The Company and the Guarantor agree, jointly and severally, to
indemnify and hold harmless each holder of Registrable Securities, its
officers, directors, employees and Agents and each Person who controls
such holder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act (each such person being sometimes
hereinafter referred to as an "Indemnified Holder") from and against all
losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and legal expenses) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary
- 19 -
21
prospectus, or 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 not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or allegation thereof
based upon information furnished in writing to the Company or the
Guarantor by such holder expressly for use therein; provided, however,
that the Company and the Guarantor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises
out of or is based upon an untrue statement of a material fact contained
in any Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or 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 not misleading, except insofar as such losses, claims, damages,
liabilities or expense arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information
furnished in writing to the Company or the Guarantor by such holder
expressly for use therein; provided, however, that the Company and the
Guarantor shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if (i) such holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities and (ii) the
Prospectus would have completely corrected such untrue statement or
omission; and provided further, that the Company and the Guarantor shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in
the Prospectus, if such untrue statement or alleged untrue statement,
omission or alleged omission is completely corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by
or on behalf of the Company or the Guarantor with copies of the Prospectus
as so amended or supplemented, such holder thereafter fails to deliver
such Prospectus as so amended or supplemented, prior to or concurrently
with the sale of a Registrable Security to the person asserting such loss,
claim, damage, liability or expense who purchased such Registrable
Security which is the subject thereof from such holder. This indemnity
will be in addition to any liability which the Company and the Guarantor
may otherwise have. The Company and the Guarantor will also indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers,
directors and employees and each
- 20 -
22
Person who controls such Persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the holders of
Registrable Securities.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an
Indemnified Holder in respect of which indemnity may be sought from the
Company or the Guarantor, such Indemnified Holder shall promptly notify
the Company and the Guarantor in writing, and the Company and the
Guarantor shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Holder and the payment
of all expenses. Such Indemnified Holder shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of
such Indemnified Holder unless (a) the Company or the Guarantor have
agreed to pay such fees and expenses or (b) the Company and the Guarantor
shall have failed to assume the defense of such action or proceeding and
have failed to employ counsel reasonably satisfactory to such Indemnified
Holder in any such action or proceeding or (c) the named parties to any
such action or proceeding (including any impleaded parties) include such
Indemnified Holder and the Company or the Guarantor, and such Indemnified
Holder shall have been advised by counsel that there may be one or more
legal defenses available to such Indemnified Holder which are different
from or additional to those available to the Company or the Guarantor (in
which case, if such Indemnified Holder notifies the Company in writing
that it elects to employ separate counsel at the expense of the Company
and the Guarantor, neither the Company nor the Guarantor shall have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Holder, it being understood, however, that the Company and the
Guarantor 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 at any time for such Indemnified Holder and
any other Indemnified Holders, which firm shall be designated in writing
by such Indemnified Holders). Neither the Company nor the Guarantor shall
be liable for any settlement of any such action or proceeding effected
without its written consent, but if settled with its written consent, or
if there be a final judgment for the plaintiff in any such action or
proceeding, the Company and the Guarantor agree to indemnify and hold
harmless such Indemnified Holders from and against any loss or liability
by reason of such settlement or judgment.
- 21 -
23
(b) Indemnification by Holder of Registrable
Securities. Each holder of Registrable Securities agrees to indemnify and
hold harmless the Company and the Guarantor, their respective directors
and officers and each Person, if any, who controls the Company or the
Guarantor within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Guarantor to such holder, but only with
respect to information relating to such holder furnished in writing by
such holder expressly for use in any Registration Statement or Prospectus,
or any amendment or supplement thereto, or any preliminary prospectus. In
case any action or proceeding shall be brought against the Company or the
Guarantor or their respective directors or officers or any such
controlling person, in respect of which indemnity may be sought against a
holder of Registrable Securities, such holder shall have the rights and
duties given the Company and the Guarantor, and the Company or the
Guarantor or their respective directors or officers or such controlling
person shall have the rights and duties given to each holder by the
preceding paragraph. In no event shall the liability of any selling
holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
The Company and the Guarantor shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Resignation Statement.
(c) Contribution. If the indemnification provided
for in this Section 9 is unavailable to an indemnified party under Section
9(a) or Section 9(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 fault of the Company and the Guarantor
on the one hand and of the Indemnified Holder (including that of its
officers, directors, employees and Agents) on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantor on
the one hand and of the Indemnified Holder (including that of its
officers, directors, employees and Agents) on the other shall be
- 22 -
24
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omissions or alleged
omission to state a material fact relates to information supplied by the
Company or the Guarantor, on the one hand, or by or on behalf of the
Indemnified Holder, on the other, 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 9(a), any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantor and each holder of Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 9(c) were determined by pro rata allocation or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(c), an
Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes sold by
such Indemnified Holder or its affiliated Indemnified Holders and
distributed to the public were offered to the public exceeds the amount of
any damages which such Indemnified Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
10. Rule 144 and Rule 144A
The Company and the Guarantor covenant that they each
will file the reports required to be filed by them under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder (or, if the Company or the Guarantor are not required to file
such reports, either the Company or the Guarantor, as the case may be,
will, upon the request of any holder of Registrable Securities made after
the date hereof, (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the Securities Act
and (ii) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the Securities Act),
and the Company or the Guarantor, as the case may be, will take such
further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such
holder to sell
- 23 -
25
Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 or Rule
144A under the Securities Act, as such Rules may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any holder of Registrable Securities or the Trustee,
the Company or the Guarantor, as the case may be, will deliver to such
holder or the Trustee, as the case may be, a written statement as to
whether it has complied with such information and requirements.
11. Participation in Underwritten Registrations
No Person may participate in any underwritten
registration hereunder unless such Person (a) agrees to sell such Person's
securities 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.
12. Miscellaneous
(a) Remedies. Each holder of Registrable
Securities, in addition to being entitled to exercise all rights provided
herein, in the Indenture, in the Purchase Agreement and granted by law,
including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company and the Guarantor agree that
monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by any of them of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Company
or the Guarantor will on or after the date of this Agreement enter into
any agreement with respect to their securities which is inconsistent with
the rights granted to the holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. Except as
listed on Schedule 12 hereof, none of the Company or the Guarantor has
previously entered into any agreement with respect to its securities
granting any registration rights to any Person.
(c) Adjustments Affecting Registrable Securities.
None of the Company or the Guarantor will take any action, or permit any
change to occur, with respect to the Registrable Securities which would
adversely affect the ability of the holders of Registrable Securities to
include such Registrable
- 24 -
26
Securities in a registration undertaken pursuant to this Agreement.
(d) 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 Company has obtained the
written consent of holders of at least 66-2/3% of the principal amount of
the outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by the holders of 66-2/3% of the
principal amount of the Registrable Securities being sold.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier or air
courier guaranteeing overnight delivery:
(1) if to a holder of Registrable Securities, at the
most current address given by such holder to the Company in
accordance with the provisions of this Section 12(e), which
address initially is, with respect to the Purchaser, the address
set forth on the first page of the Purchase Agreement, with a
copy to Milbank, Tweed, Hadley & McCloy, 601 S. Figueroa Street,
Suite 3000, Los Angeles, California 90017, Attention: Eric H.
Schunk, Esq.; and
(2) if to the Company or the Guarantor initially at
their respective addresses 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 12(e), with a copy
to Breed, Abbot & Morgan, Citicorp Center, 153 East 53rd Street,
New York, New York 10022, Attention: Monte E. Wetzler, Esq.
All such notices and communications shall be deemed to
have been duly given; at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
- 25 -
27
the trustee under the Indenture at the addresses specified in the
Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the need for
an express assignment, subsequent holders of Registrable Securities;
provided, however, that after the Closing under the Purchase Agreement
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a holder of Notes unless and to the extent such
successor or assign acquired Registrable Securities from such holder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the registration
rights granted by the Company and the Guarantor with respect to the
securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[signature pages follow]
- 26 -
28
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
The Company: THE HANOVER COMPANIES
By: /s/
------------------------
Name: /s/
---------------------
Title: /s/
--------------------
The Guarantor: THE HORN & HARDART COMPANY
By: /s/
------------------------
Name: /s/
---------------------
Title: /s/
--------------------
Purchaser: SUN LIFE INSURANCE COMPANY OF
AMERICA
By:
--------------------------
Name:
------------------------
Title:
-----------------------