Exhibit 10.35
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A/B Exchange
Registration Rights Agreement
Dated as of June 12, 1998
by and among
Clearview Cinema Group, Inc.,
the Subsidiary Guarantors
and
Lehman Brothers Inc.
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This Registration Rights Agreement (this "Agreement") is made
and entered into as of June 12, 1998 by and among Clearview Cinema Group, Inc.,
a Delaware corporation, the Subsidiary Guarantors (as defined in the Indenture)
(collectively, the "Company"), and Lehman Brothers Inc. (the "Initial
Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated June 9, 1998 (the "Purchase Agreement"), by and among the Company, the
Subsidiary Guarantors and the Initial Purchaser, which provides for the sale by
the Company to the Initial Purchaser of $80,000,000 aggregate principal amount
of the Company's 10 7/8% Senior Notes due 2008 (the "Series A Notes"). The Notes
will be guaranteed, jointly and severally, on an unsecured senior basis by a
guarantee (the "Subsidiary Guarantees") by each of the Company's subsidiaries.
In order to induce the Initial Purchaser to purchase the Series A Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchaser set forth in Section 2 of 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:
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Series A Notes
were first sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period required
pursuant to Section 3(b) hereof and (iii) 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 that were tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A
Notes, each Interest Payment Date until the earlier of (i) the
date on which Liquidated Damages no longer are payable or (ii)
maturity of the Series A Notes.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company under
the Securities Act of the Series B Notes pursuant to a
Registration Statement pursuant to which the Company offers
the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Series B Notes
in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer,
including the Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Series A Notes to (i) certain
"qualified institutional buyers," as such term is defined in
Rule 144A under the Securities Act and (ii) outside the United
States to Persons other than U.S. Persons in offshore
transactions meeting the requirements of Rule 904 of
Regulation S under the Securities Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a)
hereof.
Indenture: The Indenture, dated as of June 12, 1998,
among the Company and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee"), pursuant to which the
Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms
thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture
and the Notes.
NASD: National Association of Securities Dealers,
Inc.
Notes: The Series A Notes and the Series B Notes.
Participant: As defined in Section 8(a) hereof.
Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated
organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment
Date relating to Notes, each Person who is a Holder of Notes
on the record date with respect to the Interest Payment Date
on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of Series B Notes
pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement, which is filed pursuant to the
provisions of this Agreement including the Prospectus included
therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities Act: The Securities Act of 1933, as
amended.
Series A Notes: As defined in the preamble hereto.
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Series B Notes: The Company's 107/8% Senior Notes due
2008 to be issued pursuant to the Indenture in the Exchange
Offer.
Shelf Filing Deadline: As defined in Section 4
hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted Securities: Each Note, until the
earliest to occur of (i) the date on which such Note has been
exchanged by a person other than a Broker-Dealer for a Series
B Note in the Exchange Offer, (ii) following the exchange by a
Broker-Dealer in the Exchange Offer of such Note for one or
more Series B Notes, the date on which such Series B Notes are
sold to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii)
the date on which such Note has been effectively registered
under the Act and disposed of in accordance with a Shelf
Registration Statement or (iv) the date on which such Note is
eligible to be distributed to the public pursuant to Rule 144
under the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person beneficially owns Transfer Restricted
Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company shall (i)
cause to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 60 days after the Closing
Date, a Registration Statement under the Securities Act relating to the
Series B Notes and the Exchange Offer, (ii) use its best efforts to
cause such Registration Statement to become effective at the earliest
possible time, but in no event later than 150 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act
and (C) cause all necessary filings in connection with the registration
and qualification of the Series B Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on
the appropriate form permitting registration of the Series B Notes to
be offered in exchange for the Transfer Restricted Securities and to
permit resales of Series B Notes held by Broker-Dealers as contemplated
by Section 3(c) below.
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(b) The Company shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period
be less than 20 business days. The Company shall cause the Exchange
Offer to comply with all applicable federal and state securities laws.
No securities other than the Notes shall be included in the Exchange
Offer Registration Statement. The Company shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable
date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange Offer
Registration Statement that any Broker-Dealer who holds Series A Notes
that are Transfer Restricted Securities and that were acquired for its
own account as a result of market-making activities or other trading
activities (other than Transfer Restricted Securities acquired directly
from the Company), may exchange such Series A Notes pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Series B Notes
received by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Series B Notes
held by any such Broker-Dealer except to the extent required by the
Commission.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Series B Notes acquired by Broker-
Dealers for their own accounts as a result of market-making activities or other
trading activities, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 90 days from the date
on which the Exchange Offer Registration Statement is consummated or, if
earlier, when all Series B Notes received by such participating Broker-Dealers
in exchange for Transfer Restricted Securities acquired for their own account as
a result of market-making or other trading activities have been disposed of by
such participating Broker-Dealers. The Company shall provide sufficient copies
of the latest version of such Prospectus to such participating Broker-Dealers
promptly upon request at any time during such 90-day period in order to
facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to
file an Exchange Offer Registration Statement or to Consummate the
Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Company after the
Consummation of the Exchange Offer and on or prior to the 20th business
day following the Consummation of the Exchange Offer (A) that such
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Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such Holder may not
resell the Series B Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that
such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from the Company or one of its affiliates, then the Company
shall use its best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which
may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the
60th day after the date on which the Company determines that
it is not required to file the Exchange Offer Registration
Statement or permitted to Consummate the Exchange Offer or (2)
the 60th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) above (such earliest date being
the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use its best efforts to cause such Shelf
Registration Statement to be declared effective by the
Commission on or before the 150th day after the Shelf Filing
Deadline.
The Company shall use its best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required
by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date or such shorter
period that will terminate when all Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or become eligible for resale pursuant to Rule
144 without volume or other restrictions.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor,
such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have provided
all such reasonably requested information. Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by
such Holder not materially misleading.
5. Liquidated Damages.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date
specified for such filing in Sections 3(a) and 4(a) of this Agreement,
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as applicable (b) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified
for such effectiveness in Sections 3(a) and 4(a) of this Agreement, as
applicable (the "Effectiveness Target Date"), (c) the Exchange Offer
has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer
Registration Statement or (d) any Registration Statement required by
this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose
without being succeeded within two business days by (i) a
post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective within two business days
thereafter or (ii) a supplement to the Prospectus included in the
Registration Statement (each such event referred to in clauses (a)
through (d), a "Registration Default"), the Company will pay Liquidated
Damages to each Holder of Transfer Restricted Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.05 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder
for each week or portion thereof that the Registration Default
continues. The amount of the Liquidated Damages payable to any Holder
of Transfer Restricted Securities shall increase by an additional $.05
per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages for all Registration Defaults of $.50 per
week per $1,000 principal amount of Transfer Restricted Securities.
Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of Liquidated
Damages with respect to such Transfer Restricted Securities will cease.
All payment obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall
have been satisfied in full.
(b) The Company shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of
which Liquidated Damages are required to be paid (an "Event Date").
Liquidated Damages shall be paid by depositing with the Trustee, in
trust, for the benefit of the Holders thereof, on or before the
applicable Interest Payment Date (whether or not any payment other than
Liquidated Damages is payable on the Securities), immediately available
funds in sums sufficient to pay the Liquidated Damages then due to
Holders of Transfer Restricted Securities with respect to which the
Trustee serves. Each obligation to pay Liquidated Damages shall be
deemed to accrue from the applicable Event Date.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall comply with all of the provisions
of Section 6(c) below, shall use its best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Company there is a question as to whether the Exchange
Offer is permitted by applicable law, the Company hereby
agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company to Consummate an
Exchange Offer for such Series A Notes. The Company hereby
agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take
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commercially unreasonable action to effect a change of
Commission policy. The Company hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation
thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A)
it is not an affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement
or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in
its ordinary course of business. In addition, all such Holders
of Transfer Restricted Securities shall otherwise cooperate in
the Company's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker- Dealer and any
such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-B if the
resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired by such Holder directly
from the Company.
(iii) Prior to effectiveness of the Exchange
Offer Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan Stanley
and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B)
including a representation that the Company has not entered
into any arrangement or understanding with any Person to
distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of the Company's information and
belief, each Holder participating in the Exchange Offer is
acquiring the Series B Notes in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B
Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the
provisions of Section 6(c) below and shall use its best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as
expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without
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limitation, any Registration Statement and the related Prospectus
required to permit resales of Notes by Broker-Dealers), the Company
shall:
(i) use its best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall file
promptly an appropriate amendment or supplement to such
Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either
clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission
such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; 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 method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) in the case of a Shelf Registration
Statement, advise the underwriter(s), if any, and selling
Holders of Transfer Restricted Securities promptly and, if
requested by such Persons, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes
or (D) of the existence of any fact or the happening of any
event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions
to or changes in the Registration Statement or the Prospectus
in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
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(iv) in the case of a Shelf Registration
Statement, furnish to each of the selling Holders of Transfer
Restricted Securities and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus, which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at
least two business days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus if
a selling Holder of Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s), if any,
shall not have had an opportunity to participate in the
preparation thereof;
(v) in the case of a Shelf Registration
Statement, promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, make the Company's representatives
available for discussion of such document and other customary
due diligence matters;
(vi) in the case of a Shelf Registration
Statement, make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any
of the underwriter(s) who shall certify to the Company that
they have a current intention to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers,
directors, managers and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney
or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its
effectiveness;
(vii) in the case of a Shelf Registration
Statement, if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) unless the Transfer Restricted
Securities are then rated, cause the Transfer Restricted
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 Notes
covered thereby or the underwriter(s), if any;
(ix) in the case of a Shelf Registration
Statement, furnish to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if any,
without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
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(x) in the case of a Shelf Registration
Statement, deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject to the
last paragraph of this Section 6(c), the Company hereby
consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders of Transfer
Restricted Securities and each of the underwriter(s), if any,
in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto in accordance with the method
or methods of distribution described therein;
(xi) in the case of a Shelf Registration
Statement, enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith, in each case as are customarily made by issuers, in
order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by any Purchaser or by any
Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten
Registration, the Company shall:
(A) upon request, furnish to each
Purchaser, each selling Holder of Transfer Restricted
Securities and each underwriter, if any, in such
substance and scope as they may reasonably request
and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated
the date of effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board, its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, the matters set forth in
paragraph (i) of Section 6 of the Purchase
Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the
date of effectiveness of the Shelf
Registration Statement, of counsel for the
Company, covering the matters set forth in
paragraph (d) of Section 6 of the Purchase
Agreement and such other matter as such
parties may reasonably request, and in any
event including a statement to the effect
that, although such counsel are
not passing upon and do not assume any
responsibility for the accuracy,
completeness or fairness of the statements
contained in the Shelf Registration
Statement, such counsel has participated in
conferences with officers of the Company and
with the independent public accountants for
the Company concerning the preparation of
such Registration Statement and the related
10
Prospectus and have made certain inquiries
in connection with the preparation of the
such Registration Statement and the related
Prospectus; such counsel advises that on the
basis of such counsel's review of the
Registration Statement and the procedures
described in this letter that nothing has
come to such counsel's attention that causes
such counsel to believe that the applicable
Registration Statement (other than the
financial statements and related schedules
and other financial, market or statistical
data therein, as to which such counsel
express no opinion), at the time such
Registration Statement or any post-effective
amendment thereto became effective,
contained an untrue statement of a material
fact or omitted to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading, or that the Prospectus contained
in such Registration Statement as of its
date, contained an untrue statement of a
material fact or omitted to state a material
fact necessary in order to make the
statements therein, in light of the
circumstances under which they were made,
not misleading; and
(3) a customary comfort
letter, dated as of the date of
effectiveness of the Shelf Registration
Statement, from the Company's independent
accountants, in the customary form and
covering matters of the type customarily
covered in comfort letters by underwriters
in connection with primary underwritten
offerings, and affirming the matters set
forth in the comfort letters delivered
pursuant to paragraph (h) of Section 6 of
the Purchase Agreement, without exception.
(B) set forth in full or incorporate
by reference in the underwriting agreement, if any,
the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company pursuant to this clause (xi), if
any.
If at any time the representations and
warranties of the Company contemplated in clause (A)(1) above
cease to be true and correct, the Company shall so advise the
Initial Purchaser and the underwriter(s), if any, and each
selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing;
(xii) in the case of a Shelf Registration,
prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders of Transfer
Restricted Securities, the underwriter(s), if any, and their
respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the
selling Holders of Transfer Restricted Securities or
underwriter(s) may reasonably request and do any and all other
acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall be required to
register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it
to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in the case of a Shelf Registration,
shall issue, upon the request of any Holder of Series A Notes
covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate
11
principal amount of Series A Notes surrendered to the Company
by such Holder and being sold by such Holder; such Series B
Notes to be issued to and registered in the name of the
purchaser(s) of such Notes; in return, the Series A Notes held
by such Holder shall be surrendered to the Company for
cancellation;
(xiv) in the case of a Shelf Registration,
cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s),
if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such
underwriter(s);
(xv) use its best efforts to cause the
Transfer Restricted 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 underwriter(s), if
any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xvii) provide a CUSIP number for all
Transfer Restricted Securities not later than the effective
date of the Registration Statement and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit
with The Depository Trust Company;
(xviii) cooperate and assist in any filings
required to be made with the NASD and in the performance of
any due diligence investigation by any underwriter (including
any "qualified independent underwriter") that is required to
be retained in accordance with the rules and regulations of
the NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities; provided, however, that Company shall not be
required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would
subject it to service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xix) otherwise use its best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not
be audited) for the twelve-month period (A) commencing at the
12
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective
date of the Registration Statement;
(xx) cause the Indenture to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner; and
(xxi) provide promptly to each Holder upon
request each document filed with the Commission pursuant to
the requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder
will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice. In the event the Company
shall give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses
(including filings made by any Purchaser or Holder with the NASD (and,
if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the
Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Company; (v) any application
and filing fees in connection with listing Notes on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of
any special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
13
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell Series B Notes the Company shall indemnify and
hold harmless each Holder of Transfer Restricted Securities included within any
such Shelf Registration Statement and each participating Broker-Dealer or
Initial Purchaser selling Series B Notes, and each person, if any, who controls
any such person within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Series B Notes) to which such Participant or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Participant
promptly upon demand for any legal expenses of one counsel (in addition to local
counsel, if necessary) or other expenses reasonably incurred by such Participant
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any such Registration Statement or any prospectus
forming part thereof or in any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of any Participant specifically for inclusion therein; and provided further that
as to any preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any such Participant or any
controlling person of such Participant on account of any loss, claim, damage,
liability or action arising from the sale of the Series B Notes to any person by
that Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by the Company
with Section 6(c). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Participant or to any
controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company and its respective directors, officers,
employees or agents and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer, employees or agents or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
14
written information furnished to the Company by or on behalf of that Participant
specifically for inclusion herein, and shall reimburse the Company and any such
director, officer, employee or agent or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer,
employee or agent or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Participant may otherwise have to the
Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the indemnified party shall have
the right to employ separate counsel reasonably satisfactory to the indemnifying
party to represent jointly the indemnified party and those other Participants
and their respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Participants against the indemnifying party under this Section
8 if, in the reasonable judgment of the indemnified party it is advisable for
the indemnified party and those Participants, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the customary fees and expenses of such separate counsel shall be paid by
the indemnifying party. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to local counsel).
Each indemnified party, as a condition of the indemnity agreements contained in
Section 8, shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Company
15
on the one hand and the Participants on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Participants, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Participants agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any 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. The Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
9. Rule 144A.
At any time the Company is not subject to Section 13 of the
Exchange Act, the Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities 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 Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lockup letters and
other documents required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such 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 Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company agrees that monetary
damages (including the Liquidated Damages contemplated hereby) would
not be adequate compensation for any loss incurred by reason of a
breach by it 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. The Company will not
on or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted
to the Holders in this Agreement or otherwise conflicts with the
16
provisions hereof. The Company has not previously entered into any
agreement granting any registration rights with respect to their
securities to any Person that would afford any rights to any such
Person to participate in or otherwise pertain to the Registration
Statements contemplated by this Agreement. The rights granted to the
Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will
not take any action with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange
Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to or
departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth
on the records of the Registrar under the Indenture, with a
copy to the Registrar under the Indenture; and
(ii) if to the Company:
Clearview Cinema Group, Inc.
97 Main Street
Chatham, New Jersey 07928
Attention: President and
Chief Executive Officer
With a copy to:
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
Attention: Janice C. Hartman, 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 all such notices, demands or other
communications shall be concurrently delivered by the Person giving the
same to the Trustee at the address specified in the Indenture.
17
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without regard to the Conflict of Law rules thereof.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) Entire Agreement. This Agreement together with
the other Operative Documents (as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with
respect to the registration rights granted by the Company with respect
to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held
by the Company 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.
18
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CLEARVIEW CINEMA GROUP, INC.
By: ___________________________________
Name: A. Dale Mayo
Title: Chairman of the Board, President
and Chief Executive Officer
CCC ALLWOOD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC B.C. REALTY CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BABYLON CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BALA CYNWYD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
19
CCC BAYONNE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BEDFORD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BELLEVUE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BERGENFIELD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC BRONXVILLE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC CARMEL CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
20
CCC CEDAR GROVE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC CHESTER TWIN CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC CINEMA 304 CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC CLARIDGE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC CLOSTER CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC COBBLE HILL CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
21
CCC COLONY CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC EDISON CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC EMERSON CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC FRANKLIN SQUARE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC GRAND AVENUE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC GREAT NECK CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
22
CCC HERRICKS CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC KIN MALL CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC KISCO CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC LARCHMONT CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MADISON TRIPLE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MAMARONECK CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
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CCC MANASQUAN CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MANHASSET CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MANSFIELD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MARBORO CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MIDDLEBROOK CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC MORRISTOWN CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC NARBERTH CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
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CCC NEW CITY CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC PARSIPPANY CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC PORT WASHINGTON CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC ROSLYN CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC SCREENING ZONE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC SUCCASUNNA CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
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CCC SUMMIT CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC TENAFLY CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC WASHINGTON CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC WAYNE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC WEST MILFORD CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
CCC WOODBRIDGE CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
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CLEARVIEW THEATER GROUP, INC.
By: ___________________________________
Name: A. Dale Mayo
Title: President
MILLBURN TWIN CINEMA CORP.
By: ___________________________________
Name: A. Dale Mayo
Title: President
Accepted as of the date hereof:
LEHMAN BROTHERS INC.
By: _________________________________
Name:
Title:
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