REGISTRATION RIGHTS AGREEMENT
Dated September 28, 2005
among
GSC HOLDINGS CORP.
GAMESTOP, INC.
The Initial Guarantors listed on the Signature Pages hereto
and
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
$300,000,000 Senior Floating Rate Notes Due 2011
$650,000,000 8.0% Senior Notes Due 2012
REGISTRATION RIGHTS AGREEMENT
September 28, 2005
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
As Initial Purchasers
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GSC HOLDINGS CORP., a Delaware corporation (the "Company"), and GAMESTOP,
INC., a Minnesota corporation ("GameStop", and together with the Company, the
"Note Issuers"), propose to issue and sell to certain purchasers (the "Initial
Purchasers"), for whom Citigroup Global Markets Inc., Banc of America Securities
LLC and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated are acting as
representatives, (i) $300,000,000 aggregate principal amount of their Senior
Floating Rate Notes due 2011 (the "Senior Floating Rate Notes") and (ii)
$650,000,000 aggregate principal amount of their 8.0% Senior Notes due 2012 (the
"Senior Notes," and, together with the Senior Floating Rate Notes, the "Notes")
upon the terms set forth in the Purchase Agreement among the Note Issuers, the
guarantors listed on Schedule I-A thereto (the "Initial Guarantors") and the
Initial Purchasers named in Schedule II thereto, dated September 21, 2005 (the
"Purchase Agreement"), relating to the initial placement (the "Initial
Placement") of the Notes.
As of the date hereof, the Note Issuers' obligations under the Notes will
be guaranteed (the "Initial Guarantees") by the Initial Guarantors. Concurrently
with the consummation of the Mergers, (i) the EB Guarantors shall enter into the
Joinder Agreement pursuant to which each of the EB Guarantors will observe and
perform all of the rights, obligations and liabilities of a Guarantor as
provided in this Agreement and (ii) the Note Issuers' obligations under the
Notes will be guaranteed (the "EB Guarantees") by the EB Guarantors and the
Initial Guarantors. The Note Issuers and the Guarantors are collectively
referred to as the "Issuers." References herein to the "Securities" refer to the
Notes and the Guarantees, collectively. References herein to the "Guarantors"
refer to (a) prior to the effectiveness of the Joinder Agreement, the Initial
Guarantors and (b) thereafter, the Initial Guarantors and the EB Guarantors,
collectively. References herein to the "Guarantees" refer to (a) prior to the
effectiveness of the Joinder Agreement, the Initial Guarantees and (b)
thereafter, the Initial Guarantees and the EB Guarantees, collectively. To
induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition to your obligations thereunder, the Issuers agree with you
for your benefit and the benefit of the holders from time to time of the
Securities (including the Initial Purchasers) (each, a "Holder" and,
collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the term "controlling" shall have a meaning correlative thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean a day other than a Saturday, a Sunday or a
legal holiday or day on which banking institutions or trust companies are
authorized or required by law to close in New York City.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble hereto.
"Deferral Period" shall have the meaning set forth in Section 4(k)(ii)
hereof.
"EB Guarantees" shall have the meaning set forth in the preamble
hereto.
"EB Guarantors" shall have the meaning set forth in the preamble
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer" shall mean the exchange offer by the Issuers of
Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration Period" shall mean the period of 90 days
following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect
to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
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"Exchange Securities" shall mean debt securities of the Issuers and
Guarantees by the Guarantors, in each case identical in all material
respects to the Securities (except that the transfer restrictions and
liquidated damages provisions will be eliminated, as appropriate) to be
issued under the Indenture.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for
Exchange Securities any Securities that it acquired for its own account as
a result of market-making activities or other trading activities (but not
directly from any Issuer or any Affiliate of any Issuer) for Exchange
Securities.
"Final Memorandum" shall mean the offering memorandum, dated September
21, 2005, relating to the Securities, including any and all supplements or
exhibits thereto and any information incorporated by reference therein as
of such date.
"GameStop" shall have the meaning set forth in the preamble hereto.
"Guarantee" shall have the meaning set forth in the preamble hereto.
"Guarantors" shall have the meaning set forth in the preamble hereto.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean that certain Indenture relating to the
Securities, dated as of September 28, 2005, among the Issuers, the
Guarantors and Citibank N.A., as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Guarantees" shall have the meaning set forth in the preamble
hereto.
"Initial Guarantors" shall have the meaning set forth in the preamble
hereto.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Issuers" shall have the meaning set forth in the preamble hereto.
"Liquidated Damages" shall have the meaning set forth in Section 8
hereof.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate principal amount of Securities and Exchange Securities
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers who administer an underwritten offering, if
any, under a Registration Statement.
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"Note Issuers" shall have the meaning set forth in the preamble
hereto.
"Notes" shall have the meaning set forth in the preamble hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act),
as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Securities or the Exchange
Securities covered by such Registration Statement, and all amendments and
supplements thereto, including any and all exhibits thereto and any
information incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Issuers to issue and deliver to the Holders of Securities, which Holders
are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like
aggregate principal amount of the Exchange Securities.
"Registrable Securities" shall mean (i) Securities other than those
that have been (A) registered under a Registration Statement and disposed
of in accordance therewith or (B) distributed to the public pursuant to
Rule 144 under the Act or any successor rule or regulation thereto that may
be adopted by the Commission and (ii) any Exchange Securities the resale of
which by the Holder thereof requires compliance with the prospectus
delivery requirements of the Act.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities
or the Exchange Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Senior Floating Rate Notes" shall have the meaning set forth in the
preamble hereto.
"Senior Notes" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth in
Section 3(b)(ii) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) The Issuers shall prepare and use their reasonable best efforts to
file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Issuers shall use their
reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the Act within 210 days of the Closing Date.
The Issuers shall use their commercially reasonable efforts to cause the
Registered Exchange Offer to be completed under the Act within 270 days of
the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (i) is not an Affiliate of the Issuers, (ii)
acquires the Exchange Securities in the ordinary course of such Holder's
business, (iii) has no arrangements with any person to participate in the
distribution of the Exchange Securities, (iv) is not prohibited by any law
or policy of the Commission from participating in the Registered Exchange
Offer and (v) is not an Initial Purchaser holding Securities that have the
status of an unsold allotment remaining from the initial distribution of
the Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion
of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
(i) mail or cause to be mailed to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders;
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(iii) use their commercially reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required under the Act, to ensure
that it is available for sales of Exchange Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) If required by the Commission, prior to effectiveness of the
Exchange Offer Registration Statement, provide a supplemental letter
to the Commission (A) stating that the Issuers are conducting the
Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. (pub. avail. June 5, 1991) and
(B) including a representation that the Issuers have not entered into
any arrangement or understanding with any person to distribute the
Exchange Securities to be received in the Registered Exchange Offer
and that, to the best of the Issuers' information and belief, each
Holder participating in the Registered Exchange Offer is acquiring the
Exchange Securities in the ordinary course of business and has no
arrangement or understanding with any person to participate in the
distribution of the Exchange Securities; and
(vii) comply in all material respects with all laws applicable to
the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuers shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) hereof all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to
each Holder of Securities a principal amount of Exchange Securities
equal to the principal amount of the Securities of such Holder so
accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Securities (x) could not under Commission
policy as in effect on the date of this Agreement rely on the position of
the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail.
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June 5, 1991), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters and (y) must
comply with the registration and prospectus delivery requirements of the
Act in connection with any secondary resale transaction, which must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of Exchange Securities
obtained by such Holder in exchange for Securities acquired by such Holder
directly from any Issuer or any Affiliate of any Issuer. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the
Registered Exchange Offer:
(i) any Exchange Securities received by such Holder shall be
acquired in the ordinary course of business;
(ii) such Holder shall have no arrangement or understanding with
any person to participate in the distribution within the meaning of
the Act of the Securities or the Exchange Securities;
(iii) such Holder is not an Affiliate of the Issuers; and
(iv) if such Holder is an Exchanging Dealer, then such Holder
will deliver a Prospectus in connection with a sale of any Exchange
Securities received by such Holder pursuant to the Registered Exchange
Offer.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Issuers shall issue and deliver to
such Initial Purchaser or the person purchasing Exchange Securities
registered under a Shelf Registration Statement as contemplated by Section
3 hereof from such Initial Purchaser, in exchange for such Securities, a
like principal amount of Exchange Securities. The Issuers shall use their
commercially reasonable efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number and International Securities Identification Number
("ISIN") for such Exchange Securities as for Exchange Securities issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Issuers determine upon advice of
their outside counsel that they are not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof, (ii) for any other
reason the Registered Exchange Offer is not consummated within 270 days of
the Closing Date; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for Exchange Securities in
the Registered Exchange Offer and that are held by it following
consummation of the Registered Exchange Offer; (iv) any Holder (other than
an Initial Purchaser) is not eligible to participate in the Registered
Exchange Offer; or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires Exchange
Securities
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pursuant to Section 2(f) hereof, such Initial Purchaser does not receive
freely tradeable Exchange Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that
(x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being
not "freely tradeable;" and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of Exchange Securities
acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradeable"), the Issuers shall file and use their commercially reasonable
efforts to cause to become and keep effective a Shelf Registration
Statement in accordance with subsection (b) below.
(b) (i) The Issuers shall as promptly as practicable use their
reasonable best efforts to file with the Commission and shall use their
commercially reasonable efforts to cause to be declared effective under the
Act within 120 days after the obligation arises pursuant to section (a), a
Shelf Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the Holders
thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided, however, that no Holder (other than an Initial Purchaser) shall
be entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and
provided further, that with respect to Exchange Securities received by an
Initial Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Issuers may, if permitted by current interpretations
by the Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by Item
507 or 508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection (b) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The Issuers shall use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period from the
date the Shelf Registration Statement is declared effective by the
Commission until the earliest of: (A) the second anniversary of the
Closing Date or (B) the date upon which all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any
such case, the "Shelf Registration Period"). The Issuers shall be
deemed not to have used their reasonable best efforts to keep the
Shelf Registration Statement effective during the Shelf Registration
Period if they voluntarily take any action that would result in
Holders of Securities or Exchange Securities, as the case may be,
covered thereby not being able to offer and sell such Securities or
Exchange Securities, as the case may be, at any time during the Shelf
Registration Period, unless such action is (x) required by applicable
law or otherwise undertaken by the Issuers in
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good faith and for valid business reasons (not including avoidance of
the Issuers' obligations hereunder), including the acquisition or
divestiture of assets, and (y) permitted pursuant to Section 4(k)(ii)
hereof.
(iii) The Issuers shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply with the applicable
requirements of the Act and (B) not to contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which
they were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Issuers shall:
(i) within a reasonable time prior to the filing with the
Commission of any Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each amendment
or supplement, if any, to the Prospectus included therein, notify the
Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) of such
intended filing with the Commission and provide such parties with
copies of such document and shall consider for inclusion in any such
filing with the Commission such comments as the Initial Purchasers
reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508, as applicable, of Regulation
S-K in the Prospectus contained in the Exchange Offer Registration
Statement or Shelf Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Issuers shall use their commercially reasonable efforts to
ensure that:
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(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement
thereto complies with the Act in all material respects; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Issuers shall advise the Initial Purchasers, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Issuers a telephone or facsimile number and address for
notices, and, if requested by any Initial Purchaser or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the Prospectus until the Issuers shall have remedied
the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification of the Securities or
Exchange Securities, as the case may be, included therein for sale in
any jurisdiction or the institution or threatening of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and
(B) do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading.
(d) The Issuers shall use their commercially reasonable efforts to
prevent the issuance of any order suspending the effectiveness of any
Registration Statement or the qualification of the Securities or Exchange
Securities, as the case may be, therein for sale in any jurisdiction and,
if issued, to obtain as soon as possible the withdrawal thereof.
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(e) The Issuers shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one (1) copy of
such Shelf Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including any preliminary
prospectus) included in such Shelf Registration Statement and any amendment
or supplement thereto as such Holder may reasonably request. The Issuers
consent to the use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one (1) conformed copy of the Exchange
Offer Registration Statement and any post-effective amendments thereto,
including all material incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendments or supplements thereto as any such person may
reasonably request. The Issuers consent to the use of the Prospectus or any
amendments or supplements thereto by any Initial Purchaser, any Exchanging
Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the
offering and sale of the Exchange Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Issuers shall
arrange, if necessary, for the registration or qualification of the
Securities or the Exchange Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request in writing and shall
maintain such qualification in effect so long as required; provided that in
no event shall the Issuers be obligated to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where they are not then so
qualified or to take any action that would subject them to service of
process in suits, other than those arising out of the Initial Placement,
the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where they are not then so
subject or to subject themselves to taxation in excess of a nominal amount
in any jurisdiction where they are not otherwise so subject.
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(j) The Issuers shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Exchange Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in
writing at least three (3) Business Days prior to the closing date of any
sales of Exchange Securities.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c) (ii) through (v) above, the Issuers shall promptly (or within the time
period provided for by clause (ii) hereof, if applicable) prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to the Initial
Purchasers of the Securities included therein, the Prospectus shall not
include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 hereof
shall be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 4(c) hereof to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section 4(k).
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Issuers, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, the Issuers shall give notice (without notice of the
nature or details of such events) to the Holders that the availability
of the Shelf Registration is suspended and, upon actual receipt of any
such notice, each Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration until such Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
Section 4(a)(i) hereof, or until it is advised in writing by the
Issuers that the Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period during which
the availability of the Shelf Registration and any Prospectus is
suspended (the "Deferral Period") (1) shall not exceed 60 days in any
three-month period, (2) shall not exceed 90 days in any twelve-month
period and (3) shall extend the number of days the Shelf Registration
or any Prospectus is available by an amount equal to the Deferral
Period. Any Liquidated Damages payable pursuant to Section 8(a)(iii)
hereof shall cease to accrue during any Deferral Period.
(l) Not later than the effective date of any Registration Statement,
the Issuers shall provide a CUSIP number and ISIN for the Securities or the
Exchange Securities, as the case may be, registered under such Registration
Statement, and provide the Trustee with printed certificates for such
Securities or Exchange Securities, in a form eligible for deposit with The
Depository Trust Company.
-12-
(m) The Issuers shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a) of
the Act as soon as practicable after the effective date of the applicable
Registration Statement and in any event no later than 45 days after the end
of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the applicable Registration
Statement.
(n) The Issuers may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of such Securities as
the Issuers may from time to time reasonably require for inclusion in such
Registration Statement. The Issuers may exclude from such Shelf
Registration Statement the Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
(o) In the case of any Shelf Registration Statement, upon the written
request of the Majority Holders, the Issuers shall enter into customary
agreements (including, if requested, one underwriting agreement in
customary form) and take all other appropriate actions in order to expedite
or facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 hereof.
(p) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection by a representative
of the Holders of Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent
retained by such Holders or any such underwriter (each, an
"Inspector"), at reasonable times and in a reasonable manner, all
relevant financial and other records and pertinent corporate documents
of the Issuers;
(ii) use their commercially reasonable efforts to cause their
officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by any such Inspector in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that such
Inspector shall first agree in writing with the Issuers that any
information that is reasonably and in good faith designated by the
Issuers in writing as confidential at the time of delivery of such
information shall be kept confidential by such Inspector, unless (1)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries or regulatory
authorities, (2) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (3) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such Inspector, or (4) such
information becomes available to such Inspector from a
-13-
source other than the Issuers and such source is not known, after due
inquiry, by the relevant Holder to be bound by a confidentiality
agreement or is not otherwise under a duty of trust to the Issuers;
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of an Issuer or of any business acquired by an Issuer for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of Securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Managing Underwriters, if
any, including those to evidence compliance with Section 4(k) hereof
and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuers.
(q) In the case of any Exchange Offer Registration Statement, the
Issuers shall, if requested by an Initial Purchaser, or by a broker dealer
that holds Securities that were acquired as a result of market making or
other trading activities:
(i) make reasonably available for inspection by the requesting
party, and any attorney, accountant or other agent retained by the
requesting party, all relevant financial and other records, pertinent
corporate documents and properties of the Issuers;
(ii) use their reasonable best efforts to cause the their
officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the requesting party or
any such attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations;
-14-
(iii) make such representations and warranties to the requesting
party, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the requesting party and its
counsel, addressed to the requesting party, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
requesting party or its counsel;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of an Issuer or of any business acquired by an Issuer for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to the
requesting party, in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with primary
underwritten offerings, or if requested by the requesting party or its
counsel in lieu of a "comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35, covering matters
requested by the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the requesting party or its counsel, including those to
evidence compliance with Section 4(k) hereof and with conditions
customarily contained in underwriting agreements.
(r) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Issuers (or to such other person as
directed by the Issuers) in exchange for the Exchange Securities, the
Issuers shall ▇▇▇▇, or caused to be marked, on the Securities so exchanged
that such Securities are being cancelled in exchange for the Exchange
Securities. In no event shall the Securities be marked as paid or otherwise
satisfied.
(s) The Issuers shall use their commercially reasonable efforts to
take all other steps necessary to effect the registration of the Securities
or the Exchange Securities, as the case may be, covered by a Registration
Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred in
connection with the performance of their obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, shall reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
(which shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, but which may be another
nationally recognized law firm experienced in securities matters designated by
the Majority Holders) to act as counsel for the Holders in connection therewith,
and, in the case of any Exchange Offer Registration Statement, shall reimburse
the Initial Purchasers for the reasonable fees and disbursements of counsel
acting in connection therewith. Each Holder shall pay all expenses of its
counsel other than as set forth in the preceding
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sentence, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Securities or Exchange
Securities.
6. Indemnification and Contribution.
(a) Each of the Issuers, jointly and severally, agrees to indemnify
and hold harmless each Holder of Securities or Exchange Securities, as the
case may be, covered by any Registration Statement, each Initial Purchaser
and each Affiliate thereof and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors,
officers and Affiliates of each such Holder, Initial Purchaser or
Exchanging Dealer and each person who controls any such Holder, Initial
Purchaser or Exchanging Dealer within the meaning of either the Act or the
Exchange Act from and against any and all losses, claims, damages and
liabilities, joint or several, to which they or any of them may become
subject under Section 15 of the Act, Section 20 of the Exchange Act or
other U.S. federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement as originally filed or in any amendment thereof, or
in any preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case
of any preliminary prospectus or the Prospectus, in the light of the
circumstances under which they were made) not misleading, and agrees
(subject to the limitations set forth in the proviso to this sentence) to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Issuers shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Issuers by or on
behalf of the party claiming indemnification specifically for inclusion
therein; provided further, the indemnity provided for in this subsection
(a) with respect to any preliminary Prospectus shall not inure to the
benefit of any Initial Purchaser from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities in initial
resales, or any person controlling such Initial Purchaser, if (i) the
Issuers had previously furnished copies of the final Prospectus on a timely
basis to such Initial Purchaser, (ii) a copy of the final Prospectus (as
then amended and supplemented if the Issuers shall have furnished any
amendment or supplement thereto) was not sent or given to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and (iii) if the
final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless,
in either case, such failure to deliver the final Prospectus was a result
of non-compliance by the Issuers with the provisions of Section 4 hereof.
This indemnity agreement shall be in addition to any liability that the
Issuers may otherwise have under this Agreement.
-16-
The Issuers also agree to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if
any, of Securities or Exchange Securities, as the case may be, registered under
a Shelf Registration Statement, their directors, officers, employees, Affiliates
or agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity)
severally and not jointly agrees to indemnify and hold harmless each of the
Issuers and each of their directors, each of their officers who signs such
Registration Statement and each person who controls the Issuers within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Issuers to each such
Holder, but only with reference to written information relating to such
Holder furnished to the Issuers by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement shall be in addition to any liability that any such
Holder may otherwise have under this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure to so notify the indemnifying party
(i) shall not relieve it from liability under subsection (a) or (b) of this
Section 6 unless and to the extent it did not otherwise learn of such
action and such failure results in forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in subsection (a) or (b) of
this Section 6. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel, other than local counsel if not appointed by the
indemnifying party, retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel (including local counsel) to represent
the indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest (based on the advice of counsel to the indemnified
person), (ii) such action includes both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded (based on the advice of counsel to the indemnified person) that
there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the
-17-
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
shall not, without the prior written consent of the indemnified parties,
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 and does not include any
statement as to, or any concession of, fault, culpability or failure to act
by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in subsection (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending any loss,
claim, liability, damage or action) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying party, on the
one hand, and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser be
responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, or in the case of a
Exchange Security, applicable to the Security that was exchangeable into
such Exchange Security, as set forth in the Purchase Agreement, nor shall
any underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such
underwriter under the Registration Statement which resulted in such Losses.
The relative benefits received by the Issuers shall be deemed to be equal
to the total net proceeds from the Initial Placement (before deducting
expenses) as set forth in the Final Memorandum. The relative benefits
received by the Initial Purchasers shall be deemed to be equal to the total
discounts and commissions as set forth in the Purchase Agreement, and
benefits received by any other Holders shall be deemed to be equal to the
value of receiving Securities or Exchange Securities, as applicable,
registered under the Act. The relative benefits received by any underwriter
shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement which resulted in such Losses. If the
allocation contemplated by such consideration of the relative benefits
received by the Issuers, the Initial Purchasers and any underwriter is
unavailable for any reason, the indemnifying party and the indemnified
party shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which resulted
in such Losses, as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information provided by the
-18-
indemnifying party, on the one hand, or by the indemnified party, on the
other hand, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement
or omission. The parties agree that it would not be just and equitable if
the amount of such contribution were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
subsection (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6, each person, if any, who controls a Holder
within the meaning of either the Section 15 of the Act or Section 20 of the
Exchange Act and each director and officer of such Holder shall have the
same rights to contribution as such Holder, and each person who controls
any Issuer within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act, each officer of such Issuer who shall have signed the
Registration Statement and each director of such Issuer shall have the same
rights to contribution as the Issuers, subject in each case to the
applicable terms and conditions of this subsection (d).
(e) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Issuers or any of the indemnified persons referred to in this
Section 6, and shall survive the sale by a Holder of securities covered by
a Registration Statement.
7. Underwritten Registrations.
(a) If any of the Securities or Exchange Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters, if any, shall be selected
by the Majority Holders, subject to the consent of the Issuers (which
consent shall not be unreasonably withheld), and the Holders of the
Securities or Exchange Securities covered by the Shelf Registration
Statement shall be responsible for all underwriting commissions and
discounts.
(b) No person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such person (i) agrees to sell
such person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
8. Registration Defaults.
(a) If any of the following events shall occur, then the Issuers shall
pay liquidated damages (the "Liquidated Damages") to the Holders of
Securities in respect of the Securities as follows:
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(i) if (a) neither (x) the Registered Exchange Offer is completed
within 270 Days of the Closing Date, nor (y) if required, the Shelf
Registration Statement is declared effective within 120 days after the
obligation arises to file such Shelf Registration Statement pursuant
to Section 3(a) hereof, then Liquidated Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum on the principal
amount of such Registrable Securities for the first 90 days from and
including such specified date and increasing by an additional 0.25%
per annum at the beginning of each subsequent 90-day period
thereafter; provided that Liquidated Damages in the aggregate under
this Section 8 may not exceed 1.0% per annum of the principal amount
of such Registrable Securities; or
(ii) notwithstanding that the Issuers have consummated or will
consummate a Registered Exchange Offer, if the Issuers are required to
file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective on or prior to the 120th day
following the date the obligation arises to file such Shelf
Registration Statement pursuant to Section 3(a) hereof, then
Liquidated Damages shall accrue on the Registrable Securities at a
rate of 0.25% per annum of the principal amount of such Registrable
Securities for the first 90 days from and including such specified
date and increasing by an additional 0.25% per annum at the beginning
of each subsequent 90-day period thereafter; provided that Liquidated
Damages in the aggregate under this Section 8 may not exceed 1.0% per
annum of the principal amount of such Registrable Securities; or
(iii) subject to the last sentence of Section 4(k)(ii) hereof, if
the Shelf Registration Statement required by Section 3(a) hereof has
been declared effective but thereafter ceases to be effective at any
time at which it is required to be effective under this Agreement and
such failure to remain effective exists for more than 60 days in any
three-month period or more than 90 days in any twelve-month period
during the period for which the Shelf Registration Statement is
required, then commencing on the 61st day or 91st day, as applicable,
following the date on which such Shelf Registration Statement ceases
to be effective, Liquidated Damages shall accrue on the Registrable
Securities at a rate of 0.25% per annum of the principal amount of
such Registrable Securities for the first 90 days from and including
such 61st day or 91st day, as applicable, following the date on which
such Shelf Registration Statement ceases to be effective and
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period thereafter; provided that Liquidated Damages
in the aggregate under this Section 8 may not exceed 1.0% per annum of
the principal amount of such Registrable Securities;
provided, however, that upon (1) the completion of the Exchange Offer (in
the case of paragraph (i) above), (2) the effectiveness of the Shelf
Registration Statement (in the case of paragraph (ii) above) and (3) the
effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of paragraph (iii) above), Liquidated Damages
shall cease to accrue.
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(b) Any amounts of Liquidated Damages due pursuant to paragraphs (i),
(ii) or (iii) of subsection (a) will be payable in cash on each interest
payment date specified by the Indenture to the record holder entitled to
receive the interest payment to be made on such date, commencing with the
first such date occurring after any such Liquidated Damages commences to
accrue.
(c) The parties hereto agree that the liquidated damages in the form
of Liquidated Damages provided for in this Section 8 constitute a
reasonable estimate of and are intended to constitute the sole damages
payable under this Agreement that will be suffered by Holders of Securities
by reason of the failure of (i) the Registered Exchange Offer to be
completed, (ii) the Shelf Registration Statement, if required hereby, to be
declared effective, or (iii) the Shelf Registration Statement to remain
effective (and the Prospectus contained therein to remain usable), in each
case to the extent required by this Agreement.
9. No Inconsistent Agreements. The Issuers have not entered into, and agree
not to enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuers have
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights and
obligations of any Initial Purchaser hereunder, the Issuers shall obtain the
written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective; provided,
further, that no amendment, qualification, supplement, waiver or consent with
respect to Section 8 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder; and
provided, further, that the provisions of this Article 10 may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuers have obtained the
written consent of the Initial Purchasers and each Holder. Notwithstanding the
foregoing (except the foregoing provisos), a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or Exchange Securities, as the case may be,
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or Exchange Securities, as the
case may be, being sold rather than registered under such Registration
Statement.
11. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder
to the Issuers in accordance with the provisions of this Section 11, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar (as such term is defined in the
Indenture) under the Indenture;
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(b) if to the Initial Purchasers, initially at the address or
addresses set forth in the Purchase Agreement; and
(c) if to any Issuer, initially at the address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers or the Note Issuers by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all
rights provided to it herein, in the Indenture or in the Purchase Agreement or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. Each Issuer
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by them of the provisions of this Agreement and
hereby agree to waive in any action for specific performance the defense that a
remedy at law would be adequate.
13. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities,
and the indemnified persons referred to in Section 6 hereof. Each Issuer hereby
agrees to extend the benefits of this Agreement to any Holder of Securities and
the Exchange Securities, and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
18. Securities Held by any Issuer, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities or Exchange
Securities is required
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hereunder, Securities or Exchange Securities, as applicable, held by any Issuer
or their Affiliates (other than subsequent Holders of Securities or Exchange
Securities if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Securities or Exchange Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
[Signature pages follow.]
-23-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement by and among the
Issuers and the several Initial Purchasers.
Very truly yours,
GSC Holdings Corp.
By:
------------------------------
Name:
Title:
GAMESTOP, INC.
By:
------------------------------
Name:
Title:
GAMESTOP CORP.
By:
-----------------------------
Name:
Title:
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
-----------------------------
Name:
Title:
MARKETING CONTROL SERVICES, INC.
By:
-----------------------------
Name:
Title:
-24-
SUNRISE PUBLICATIONS, INC.
By:
---------------------------------
Name:
Title:
GAMESTOP BRANDS, INC.
By:
---------------------------------
Name:
Title:
GAMESTOP OF TEXAS (GP), LLC
By:
---------------------------------
Name:
Title:
GAMESTOP (LP), LLC
By:
---------------------------------
Name:
Title:
GAMESTOP TEXAS LP
By:
---------------------------------
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-25-
Accepted as of the date hereof
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
Acting severally on behalf of themselves and
the several Initial Purchasers.
By: CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------
Name:
Title:
-26-
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it shall deliver a
Prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a Prospectus, a
Broker-Dealer shall not be deemed to admit that it is an "underwriter" within
the meaning of the Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, for a period of 90 days
after consummation of the Registered Exchange Offer, they shall make this
Prospectus available to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution".
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it shall deliver a Prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a Prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. Each Issuer has agreed
that, for a period of 90 days after the consummation of the Registered Exchange
Offer, it will make this Prospectus, as amended or supplemented, available to
any Broker-Dealer for use in connection with any such resale. In addition, until
[ ], 200[ ], all dealers effecting transactions in the Exchange Securities may
be required to deliver a Prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by brokers-dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such Broker-Dealer and/or the purchasers of
any such Exchange Securities. Any Broker-Dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Registered Exchange
Offer and any broker or dealer that participates in a distribution of such
Exchange Securities may be deemed to be an "underwriter" within the meaning of
the Act and any profit of any such resale of Exchange Securities and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Act. The Letter of Transmittal states that
by acknowledging that it will deliver and by delivering a Prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of 90 days after the consummation of the Registered Exchange
Offer, the Issuers will promptly send additional copies of this Prospectus and
any amendments or supplements to this Prospectus to any Broker-Dealer that
requests such documents in the Letter of Transmittal. The Issuers have agreed to
pay all expenses incident to the Registered Exchange Offer (including the
expenses of one counsel for the holder of the Securities) other than commissions
or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any Broker-Dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
C-1
ANNEX D
LANGUAGE TO BE INCLUDED IN LETTER OF TRANSMITTAL
1. PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------
Address:
-----------------------------------
-----------------------------------
2. If the undersigned is not a Broker-Dealer, the undersigned represents that
it acquired the Exchange Securities in the ordinary course of its business,
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities and it has no arrangements or understandings with any
person to participate in a distribution of the Exchange Securities. If the
undersigned is a Broker-Dealer that will receive Exchange Securities for
its own account in exchange for Securities, it represents that the
Securities to be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities and
acknowledges that it shall deliver a Prospectus in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a Prospectus, the undersigned shall not be deemed to admit that
it is an "underwriter" within the meaning of the Act.
D-1
