EXHIBIT 10.19
STATER BROS. HOLDINGS INC.
Dealer Manager Agreement
July 1, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
STATER BROS. HOLDINGS INC., a Delaware corporation (the "Company"),
plans (i) to make tender offers to purchase all of its outstanding (A) 11%
Senior Notes due 2001 (the "Senior Notes") and (B) 9% Senior Subordinated Notes
due 2004 (the "Senior Subordinated Notes" and, together with the Senior Notes,
collectively, the "Notes") and (ii) to solicit consents (the "Consents") from
the holders of the Notes to certain proposed amendments (the "Proposed
Amendments") to each of (A) the indenture dated as of March 8, 1994 (as amended
by the First Supplemental Indenture dated as of July 22, 1997, the "Senior Note
Indenture") between the Company and IBJ Whitehall Bank & Trust Company (formerly
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company), as trustee, pursuant to which the Senior
Notes were issued and (B) the indenture dated as of July 24, 1997 (the "Senior
Subordinated Note Indenture" and, together with the Senior Note Indenture,
collectively, the "Indentures") between the Company and First Trust of New York,
National Association, as trustee, pursuant to which the Senior Subordinated
Notes were issued, in each case on the terms and subject to the conditions set
forth in the Offer to Purchase and Consent Solicitation Statement (the
"Offer/Solicitation") and the Consent and Letter of Transmittal (the "Consent
and Letter of Transmittal") attached hereto as Exhibits A and B, respectively
(which together constitute the "Offer" and the "Consent Solicitation" in respect
of the Notes). The Offer and Consent Solicitation are being made in connection
with the proposed acquisition of certain supermarket assets (the "Acquisition")
and the issuance of new notes (together with the Acquisition, the "Transaction")
as more fully described in the Offer/Solicitation.
The following sets forth the agreement (the "Agreement") between the
Company and you as exclusive dealer manager (the "Dealer Manager") and exclusive
solicitation agent (the "Solicitation Agent"):
1. Engagement as Dealer Manager and Solicitation Agent. The Company
---------------------------------------------------
hereby engages you as exclusive Dealer Manager and exclusive Solicitation Agent,
authorizes you to act as such in connection with the Offer and the Consent
Solicitation and agrees that you shall act as an independent contractor with
duties solely to the Company. As Dealer Manager and Solicitation Agent, you
agree, in accordance with your customary practice, to perform those services in
connection with the Offer and the Consent Solicitation as are customarily
performed
by investment banking concerns in connection with tender offers and consent
solicitations of like nature, including but not limited to, soliciting the Notes
sought to be purchased by the Company pursuant to the Offer and soliciting the
Consents sought by the Company pursuant to the Consent Solicitation.
2. Offer and Consent Solicitation Material; Withdrawal. The Company
---------------------------------------------------
agrees to furnish you with as many copies as you may reasonably request of the
Offer/Solicitation and Consent and Letter of Transmittal, any amendments or
supplements thereto, any documents incorporated by reference therein, and any
other documents or materials whatsoever relating to the Offer or Consent
Solicitation (collectively, as amended or supplemented from time to time, and
including any documents incorporated by reference therein, the "Offer and
Consent Solicitation Material") to be used by the Company in connection with the
Offer and the Consent Solicitation. The Company agrees that, within a
reasonable time prior to using any Offer and Consent Solicitation Material, it
will submit copies of such material to you and your counsel and will not use or
publish any such material to which you or your counsel object.
In the event that (i) the Company uses or permits the use of any Offer
and Consent Solicitation Material (a) which has not been submitted to you for
your comment and approval, which approval shall not be unreasonably withheld, or
(b) which has been so submitted and with respect to which you have made
comments, but which comments have not resulted in a response reasonably
satisfactory to you and your counsel to reflect your comments, (ii) the Company
shall have breached, in any material respect, any of its respective
representations, warranties, agreements or covenants herein or (iii) the Offer
and the Consent Solicitation are terminated or withdrawn for any reason or any
stop order, restraining order, injunction or denial of an application for
approval has been issued and not thereafter stayed or vacated with respect
thereto, then in any such case you shall be entitled to withdraw as Dealer
Manager and Solicitation Agent without any liability or penalty to you or any
other Indemnified Person (as defined in Section 8) and without loss of any right
to the payment of all fees and expenses payable hereunder which have accrued to
the date of such withdrawal. If you withdraw as Dealer Manager or Solicitation
Agent for any of the reasons set forth in clauses (i) through (iii) above, the
reimbursement for your expenses incurred pursuant to Section 4 through the date
of such withdrawal shall be paid to you promptly after such date. The Company
shall inform you promptly after it receives notice or becomes aware of the
happening of any event, or the discovery of any fact, that would require the
making of any change in any Offer and Consent Solicitation Material then being
used or would affect the truth or completeness of any representation or warranty
contained in this Agreement if such representation or warranty were being made
immediately after the happening of such event or the discovery of such fact.
3. Compensation. You will not receive a fee for your services as
------------
Dealer Manager and Solicitation Agent under this Agreement.
4. Expenses. The Company agrees to pay (i) all fees and expenses
--------
relating to the preparation, printing, mailing and publishing of the Offer and
Consent Solicitation Material and supplemental indentures with respect to each
of the Indentures to effect the Proposed Amendments (the "Supplemental
Indentures"), (ii) all advertising charges in connection with the Offer and
Consent Solicitation incurred and approved by the Company, (iii) all fees and
expenses of the Company's counsel and accountants and of the Depositary (as
defined in Section 5), (iv) all other fees and expenses in connection with the
Offer and the Consent Solicitation,
2
including those of any depositary, information agent or other person rendering
services in connection therewith and (v) to brokers and dealers (including you),
commercial banks, trust companies and other nominees the amount of their
customary mailing and handling expenses incurred in forwarding the Offer and
Consent Solicitation Material to their customers. The Company shall also
reimburse you for all reasonable, documented out-of-pocket expenses incurred by
you directly related to your services as Dealer Manager and Solicitation Agent,
including the reasonable fees and expenses of your counsel, Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP. All payments to be made by the Company pursuant to this
Section 4 shall be made promptly after the earlier to occur of the expiration or
termination of the Offer and the Consent Solicitation, the consummation of the
Transaction or your withdrawal pursuant to Section 2. The Company shall perform
its obligations set forth in this Section 4 whether or not the Offer or the
Consent Solicitation is commenced or the Company acquires any Notes or Consents
pursuant to the Offer or the Consent Solicitation or otherwise.
5. The Depositary and Information Agent. The Company shall arrange
------------------------------------
for IBJ Whitehall Bank & Trust Company to serve as depositary (the "Depositary")
in connection with the Offer and Consent Solicitation and, as such, to advise
you at least daily as to such matters relating to the Offer and Consent
Solicitation as you may request. The Company shall provide you or cause the
trustees under each of the Indentures and The Depository Trust Company ("DTC")
to provide you with copies of the records or other lists showing the names and
addresses of, and principal amounts of Notes held by, the holders of Notes as of
a recent date and shall, from and after such date, use its best efforts to cause
you to be advised from day to day during the pendency of the Offer and the
Consent Solicitation of all transfers of Notes, such notification consisting of
the name and address of the transferor and transferee of any Notes and the date
of such transfer. The Company shall arrange for ▇.▇. ▇▇▇▇ & Co., Inc. to serve
as information agent in connection with the Offer and the Consent Solicitation
and, as such, to advise you as to such matters relating to the Offer and the
Consent Solicitation as you may reasonably request and to furnish you with any
written reports concerning any such information as you may reasonably request.
6. Representations, Warranties and Certain Agreements of the Company
-----------------------------------------------------------------
The Company represents and warrants to you, and agrees with you, that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all the necessary
corporate power and authority, and has taken all necessary corporate action, to
authorize the Offer and the Consent Solicitation, the purchase of Notes pursuant
to the Offer, the payment for the Consents pursuant to the Consent Solicitation
and all other actions by the Company contemplated in the Offer and Consent
Solicitation Material, including the consummation of the Transaction and the
execution and delivery of the Supplemental Indentures;
(b) this Agreement has been duly authorized, executed and delivered
by, and is a legal, valid and binding agreement of, the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
of this Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or law) and
3
except as rights to indemnity under this Agreement may be limited by Federal or
state securities laws;
(c) a complete and correct copy of the Offer and Consent Solicitation
Material has been furnished to you or will be furnished to you no later than the
date the Offer and Consent Solicitation is commenced (the "Commencement Date").
The Offer and Consent Solicitation Material, as amended and supplemented from
time to time, complies and will comply in all material respects with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the rules and
regulations thereunder, and the various state securities or "blue sky" laws.
The Offer and Consent Solicitation Material does not and will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they are made, not misleading;
(d) the Offer and Consent Solicitation, the purchase of the Notes
pursuant to the Offer, the payment for the Consents pursuant to the Consent
Solicitation, the execution, delivery and performance of the Supplemental
Indentures, all other actions by the Company contemplated in the Offer and
Consent Solicitation Material, including the consummation of the Transaction,
and the execution and delivery of, and the consummation of the transactions
contemplated in, this Agreement will comply in all material respects with all
applicable requirements of law, including any applicable rule or regulation of
any governmental agency, authority or instrumentality, and no consent,
authorization, approval, order, exemption or other action of, or filing with,
any governmental agency, authority or instrumentality of the United States or
any jurisdiction therein or any other jurisdiction is required in connection
with the Offer and the Consent Solicitation or the consummation by the Company
of the transactions contemplated herein or in the Offer and Consent Solicitation
Material, including the consummation of the Transaction, except that a final
order from the Federal Trade Commission ("FTC") and the California Attorney
General granting consent to the Acquisition is required to be obtained;
(e) the Offer and the Consent Solicitation, the purchase of Notes
pursuant to the Offer, the payment for the Consents pursuant to the Consent
Solicitation, the execution, delivery and performance of the Supplemental
Indentures, all other actions by the Company contemplated in the Offer and
Consent Solicitation Material, including the consummation of the Transaction,
and the execution and delivery of, and the consummation of the transactions
contemplated in, this Agreement do not and will not (i) conflict with, result in
a breach of or constitute a default under, the certificate of incorporation or
by-laws of the Company or any of its subsidiaries or any loan or credit
agreement, indenture, mortgage, note or other material agreement or instrument
affecting the Company or any of its subsidiaries or to which the Company or any
of its subsidiaries is a party or by which any of them or any of their
respective properties or assets is or may be bound or (ii) conflict with or
violate any order, judgment or decree of any court or governmental agency,
authority or instrumentality of the United States or any jurisdiction therein or
any other jurisdiction applicable to the Company or any of its subsidiaries;
(f) any document incorporated by reference in the Offer and Consent
Solicitation Material or from which information is so incorporated by reference
when filed or becoming effective, as the case may be, complied and will comply
in all material respects with
4
the requirements of the Securities Act and the Exchange Act, as applicable, and
the applicable rules and regulations thereunder;
(g) each of the Supplemental Indentures has been duly and validly
authorized by the Company and may be entered into upon the consent of holders of
a majority of the aggregate principal amount of the Notes outstanding under the
applicable Indenture (the "Requisite Consents"), pursuant to the provisions of
the applicable Indenture. Upon the receipt of the Requisite Consents, the
Company will execute and deliver the Supplemental Indentures. Upon such
execution and delivery thereof, each of the Supplemental Indentures will have
been duly and validly authorized, executed and delivered by, and will be a
legal, valid and binding agreement of, the Company, enforceable against the
Company in accordance with its terms, except as the enforceability of the
Supplemental Indentures may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and may be subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(h) the Proposed Amendments set forth in the Supplemental Indentures
when executed and delivered will conform in all material respects to the
description thereof in the Offer and Consent Solicitation Material;
(i) on or prior to the Commencement Date, the Company will have made
appropriate arrangements, to the extent applicable, with DTC or any other
"qualified" securities depositary to allow for the book-entry movement of the
tendered Notes between depositary participants and the Depositary;
(j) each of the representations and warranties of the Company set
forth in this Agreement will be true and correct on and as of the Commencement
Date and on and as of the date of payment for the Notes and the Consents (the
"Settlement Date");
(k) neither the Offer nor the Consent Solicitation requires
registration under the Securities Act; and
(l) the Company will comply, and will cooperate with you to ensure
compliance, with Regulation 14E promulgated under the Exchange Act in connection
with the Offer and Consent Solicitation, to the extent such Regulation is
applicable to the Offer and Consent Solicitation.
7. Covenants. The Company shall advise you promptly of (i) the
---------
occurrence of any event which could cause the Company to withdraw or terminate
the Offer or the Consent Solicitation or would permit the Company to exercise
any right not to purchase tendered Notes or make consent payments thereunder,
(ii) any proposal or requirement to make, amend or supplement any Offer and
Consent Solicitation Material, (iii) the issuance of any order or the taking of
any other action by any administrative or judicial tribunal or other
governmental agency or instrumentality concerning the Offer or the Consent
Solicitation (and, if in writing, shall furnish you a copy thereof) and (iv) any
other information relating to the Offer or the Consent Solicitation which you
may from time to time reasonably request. The Company agrees that if any event
occurs or condition exists as a result of which the Offer and Consent
Solicitation Material would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances when the Offer and
5
Consent Solicitation Material is delivered to a holder of Notes, not misleading,
or if, in the opinion of the Company, after consultation with you, it is
necessary at any time to amend or supplement the Offer and Consent Solicitation
Material to comply with applicable law, the Company shall immediately notify
you, prepare an amendment or supplement to the Offer and Consent Solicitation
Material that shall correct such statement or omission or effect such
compliance, and supply such amended or supplemented Offer and Consent
Solicitation Material to you.
8. Indemnification and Contribution. The Company hereby agrees to
--------------------------------
hold you harmless and to indemnify you (including any of your affiliates and any
director, officer, manager, member, agent or employee of you or any such
affiliate) and any director, officer, manager, member, or other person
controlling (within the meaning of Section 20(a) of the Exchange Act) you
(including any of your affiliates) from and against any and all losses, claims,
damages, liabilities or expenses (whether in contract, tort or otherwise)
whatsoever (as incurred or suffered and including, but not limited to, any and
all expenses reasonably incurred in investigating, preparing or defending any
litigation or proceeding, commenced or threatened, or any claim whatsoever and
whether or not you or any other indemnified person shall be a party thereto) (a)
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Offer and Consent Solicitation
Material, or any omission or alleged omission to state in any Offer and Consent
Solicitation Material a material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading or (ii) any withdrawal or termination by the Company of, or failure
by the Company to make or consummate, the Offer or the Consent Solicitation or
to purchase any Notes pursuant to the Offer or to make any consent payments
pursuant to the Consent Solicitation or (iii) any breach by the Company of any
representation or warranty or failure to comply with any of the agreements
contained herein or (b) otherwise arising out of, relating to or in connection
with or alleged to arise out of, relate to or be in connection with the Offer or
the Consent Solicitation or your role in connection therewith; provided,
however, that (x) in the case of clause (a)(i) above, the Company shall not be
liable to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission made therein in reliance upon and in conformity with
written information furnished to the Company by you or on your behalf
specifically for inclusion therein and (y) in the case of clauses (a)(ii) or (b)
above, the Company shall not be liable for any such loss, claim, damage,
liability or expense which is finally judicially determined to be attributable
to your gross negligence or willful misconduct. The foregoing indemnity shall be
in addition to any liability which the Company might otherwise have to you and
such other indemnified persons. You shall have no liability (direct or indirect
and whether in tort, contract or otherwise) to the Company or any other person
for any losses, claims, damages, liabilities or expenses arising from your own
acts or omissions in performing your obligations hereunder or otherwise in
connection with the Offer or the Consent Solicitation except for any such
losses, claims, damages, liabilities or expenses finally judicially determined
to be attributable to your gross negligence or willful misconduct.
If a claim is made against any person in respect of which indemnity
may be sought pursuant to the first paragraph of this Section 8, such person
(the "Indemnified Person") shall notify the person against whom such indemnity
may be sought (the "Indemnifying Person") promptly after any written assertion
of such claim threatening to institute an action or proceeding with respect
thereto and shall notify the Indemnifying Person promptly of any action
6
commenced against such Indemnified Person within a reasonable time after such
Indemnified Person shall have been served with a summons or other first legal
process giving information as to the nature and basis of the claim. Failure to
so notify such Indemnifying Person shall not, however, relieve the Indemnifying
Person from any liability which it may have on account of the indemnity under
this Section 8 if the Indemnifying Person has not been prejudiced in any
material respect by such failure. The Indemnifying Person shall be entitled to
participate at its own expense in the defense of any such litigation or
proceedings, but such defense shall be conducted by counsel to such Indemnified
Person. The Indemnifying Person shall, upon the request of such Indemnified
Person, assume the defense of any such litigation or proceeding, and in the case
of any such request such defense shall be conducted by counsel reasonably
satisfactory to the Indemnified Person. In any such litigation or proceeding
the defense of which the Indemnifying Person shall have so assumed, any
Indemnified Person shall have the right to participate in such litigation or
proceeding and to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the (x) Indemnifying Person and
(y) the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicting interests
between them. It is understood that the Indemnifying Person shall not, in
connection with any litigation or proceeding or related litigation or proceeding
in the same jurisdiction, be liable under this Agreement for (i) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
you and all such other persons, if any, referred to in the first paragraph of
this Section 8 (such firm to be designated by you) and (ii) the fees and
expenses of more than one separate firm (in addition to local counsel) for the
Company and all such other persons, if any, referred to in the second paragraph
of this Section 8 (such firm to be designated by the Company), and that all such
fees and expenses shall be reimbursed as they are incurred. The Indemnifying
Person shall not be liable for any settlement of any litigation or proceeding
effected without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees, subject to the provisions of this
Section 8, to indemnify the Indemnified Person from and against any loss,
damage, liability or expenses by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding. The
Indemnifying Person agrees to notify the Indemnified Person promptly of the
assertion of any claim in connection with the Offer or Consent Solicitation
against it, any of its officers or directors or any person who controls it
within the meaning of Section 20(a) of the Exchange Act.
To the extent the indemnity provided for in the foregoing paragraphs
of this Section 8 is unavailable to an Indemnified Person in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
Indemnifying Person agrees to contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person or Persons, on the one hand, and
the Indemnified Person or Persons, on the other, from the Offer and Consent
Solicitation or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, in such proportion as is
7
appropriate to reflect not only the relative benefits referred to in the
foregoing clause (i), but also the relative fault of the Indemnifying Person or
Persons, on the one hand, and the Indemnified Person or Persons, on the other,
in connection with the statements, actions or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and by you, on the other, shall be deemed to be in the same proportion
as (i) the maximum aggregate value of the consideration proposed to be paid by
the Company for the purchase of Notes pursuant to the Offer and the consent
payments pursuant to the Consent Solicitation bears to (ii) the maximum
aggregate fee proposed to be paid to you pursuant to Section 3. The relative
fault of the Company, on the one hand, and of you, on the other, (i) in the case
of an untrue or alleged untrue statement of a material fact or an omission or
alleged omission to state a material fact, shall be determined by reference to,
among other things, whether such statement or omission relates to information
supplied by the Company or by you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission and (ii) in the case of any other action or omission, shall be
determined by reference to, among other things, whether such action or omission
was taken or omitted to be taken by the Company, on the one hand, or by you, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to prevent such action or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 8 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.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitation set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
The remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
9. Survival of Indemnities, Representations and Warranties, etc.
------------------------------------------------------------
The indemnity and contribution agreements contained in Section 8, the provisions
of Sections 2, 3 and 4 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any failure to commence, or the withdrawal, termination or
consummation of, the Offer or the Consent Solicitation or the termination or
assignment of this Agreement, (ii) any investigation made by or on behalf of the
Company, you or any other Indemnified Person and (iii) any withdrawal by you
pursuant to Section 2.
10. Opinions of Counsel to the Company.
----------------------------------
(a) The Company agrees that it shall furnish to you on, and dated as
of, the Commencement Date (i) an opinion of ▇▇▇▇▇▇, Saleson & ▇▇▇▇▇▇ LLP,
counsel to the Company, addressed to you, addressing the matters set forth in
Exhibit C attached to this Agreement and (ii) an opinion of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel to the Company, addressed to you, addressing the matters
set forth in Exhibit D attached to this Agreement. Receipt by you of such
opinion is an express condition to performance of your obligations as Dealer
Manager and Solicitation Agent under this Agreement or otherwise in connection
with the Offer and the Consent Solicitation. If such opinion is not received by
you, your obligations as Dealer Manager
8
and Solicitation Agent under this Agreement or otherwise in connection with the
Offer and the Consent Solicitation shall cease to exist.
(b) The Company shall, at the time of execution and delivery of the
Supplemental Indentures, deliver or cause to be delivered to you the opinions of
counsel to the Company which is delivered to the trustee under each of the
Indentures in connection therewith, together with a letter of such counsel,
addressed to you and dated the date of such opinion, to the effect that you may
rely on such opinions as though they were addressed to you.
11. Severability. In the event that any provision hereof shall be
------------
determined to be invalid or unenforceable in any respect, such determination
shall not affect such provision in any other respect or any other provision
hereof, which shall remain in full force and effect.
12. Counterparts. This Agreement may be executed in two or more
------------
separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
13. Binding Effect. This Agreement, including any right to
--------------
indemnity or contribution hereunder, shall inure to the benefit of and be
binding upon the Company, you and the other Indemnified Persons (as defined in
Section 8) and their respective successors and assigns. Nothing in this
Agreement is intended, or shall be construed, to give to any other person or
entity any right hereunder or by virtue hereof.
14. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York. This Agreement
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof.
15. References to Banc of America Securities LLC. The Company
--------------------------------------------
agrees that any reference to you in the Offer and Consent Solicitation Material,
or in any other release or communication relating to the Offer or the Consent
Solicitation, is subject to your prior written approval, which approval shall
not be unreasonably withheld.
16. Notices. All notices and other communications required or
-------
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally to the parties hereto as
follows:
(a) If to you:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
9
Banc of America Securities LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Company:
Stater Bros. Holdings Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, Saleson & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
10
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
17. Waiver of Right to Jury Trial; Submission to Jurisdiction. You
---------------------------------------------------------
and the Company each waive any right to trial by jury in any action, claim, suit
or proceeding with respect to your engagement hereunder. The Company hereby (a)
submits to the jurisdiction of any New York State or federal court sitting in
New York City with respect to any actions and proceedings arising out of or
relating to this Agreement, (b) agrees that all claims with respect to such
actions or proceedings may be heard and determined in such New York State or
federal court, (c) waives the defense of any inconvenient forum and (d) agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
18. Subheadings. The descriptive headings contained in this
-----------
Agreement are incorporated for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
11
Please indicate your willingness to act as Dealer Manager and
Solicitation Agent on the terms set forth herein and your acceptance of the
foregoing provisions by signing in the space provided below for that purpose and
returning to us a copy of this letter, whereupon this letter shall constitute a
binding agreement between us.
Very truly yours,
STATER BROS. HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance and
Chief Financial Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
Accepted as of the date
first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
12
EXHIBIT A
Offer to Purchase and Consent Solicitation Statement
A-1
EXHIBIT B
Consent and Letter of Transmittal
B-1
EXHIBIT C
Form of Opinion of ▇▇▇▇▇▇, Saleson & ▇▇▇▇▇▇ LLP
(i) the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to execute and deliver the Dealer
Manager Agreement and perform its obligations thereunder, to execute and deliver
the Supplemental Indentures and perform its obligations thereunder and to
consummate the transactions contemplated in the Offer and Consent Solicitation,
including consummation of the Transaction;
(ii) the Offer and Consent Solicitation, the execution, delivery and
performance of each of the Dealer Manager Agreement and the Supplemental
Indentures and the consummation of all other actions by the Company contemplated
in the Offer and Consent Solicitation Material, including the consummation of
the Transaction, have been duly and validly authorized by all necessary
corporate action by the Company, and no other corporate action by the Company is
necessary to authorize any such actions;
(iii) each of the Dealer Manager Agreement and the Supplemental
Indentures is a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the validity,
binding effect and enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyances or
other similar laws now or hereafter in effect relating to creditors' rights
generally and may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or law) and
except as rights to indemnity under the Dealer Manager Agreement may be limited
by Federal or state securities laws; and
(iv) the Offer and Consent Solicitation, the purchase of the Notes
pursuant to the Offer, the payment for the Consents pursuant to the Consent
Solicitation, the execution, delivery and performance of the Supplemental
Indenture, all other actions by the Company contemplated in the Offer and
Consent Solicitation Material, including the consummation of the Transaction,
and the execution and delivery of, and the consummation of the transactions
contemplated in, the Dealer Manager Agreement do not and will not (A) conflict
with or violate the certificate of incorporation or by-laws of the Company or
any of its subsidiaries, (B) to the knowledge of such counsel, conflict with or
violate any order, judgment or decree of any court or governmental agency,
authority or instrumentality applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any subsidiary
is bound, or (C) to the knowledge of such counsel, result in a breach of or
constitute a default (or an event which with notice or lapse of time or both
would become default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any material property or asset of the Company or any of
its subsidiaries pursuant to, any loan or credit agreement, mortgage, note or
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their respective
properties or assets is bound.
C-1
EXHIBIT D
Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
(i) the Offer and Consent Solicitation Material and any document of
the Company filed with the Securities and Exchange Commission and incorporated
by reference (together with the Offer and Consent Solicitation Material, the
"Documents") in the Offer and Consent Solicitation Material or from which
information is so incorporated by reference, when it was filed or became
effective, as the case may be, complied as to form in all material respects with
the requirements of the Securities Act and the Exchange Act, as applicable, and
the rules and regulations promulgated thereunder; and
(ii) during the preparation of the Offer and Consent Solicitation
Material, we reviewed the Documents and participated in limited telephonic
conferences with an officer of the Company concerning such Documents. On the
basis of such limited involvement, this is to advise you that we have no reason
to believe that the Documents (other than the numerical, financial or
statistical data (including reserve data), financial statements and notes
thereto and related schedules therein, as to which we express no belief)
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,
in light of the circumstances under which they were made, not misleading.
D-1