EXHIBIT 10.30
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FORM OF
NOTE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Note Exchange and Registration Rights Agreement (this "Agreement")
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is made as of November _____, 2002 by and among ▇▇▇▇▇'▇ CORPORATION, a Delaware
corporation (the "Parent"), and ▇▇▇▇▇'▇ HOLDINGS, INC., a New York corporation
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("Sub"), and [__________________________], a [__________________________] (the
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"Investor").
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BACKGROUND:
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The Investor currently holds $__________ aggregate principal amount of
outstanding 11 1/4% Senior Notes due 2008 of Parent (the "Old Notes"). The
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Investor, Parent and Sub each desire to exchange $__________ aggregate principal
amount of newly issued 12 3/4% Senior Notes due 2007 of Parent and Sub (the "New
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Notes") for the Old Notes upon the terms set forth herein. The New Notes shall
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be jointly issued by Parent and Sub in a private placement transaction pursuant
to the terms of that certain Indenture (the "Indenture"), dated as of April 15,
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2002, among Parent and Sub, as issuers, and U.S. Bank National Association, as
trustee (the "Trustee"). In addition to the New Notes, Parent and Sub may from
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time to time jointly issue other privately placed notes (together with the New
Notes, the "Restricted Notes") pursuant to the Indenture and grant registration
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rights with respect thereto.
THE AGREEMENT:
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In consideration of the mutual agreements contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parent, Sub and the Investor hereby agree as
follows:
ARTICLE 1
EXCHANGE OF OLD NOTES FOR NEW NOTES
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1.1 Exchange of Old Notes for New Notes.
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Subject to the terms of this Agreement, the Investor hereby purchases, and
Parent and Sub hereby jointly sell and issue to the Investor the New Notes,
substantially in the form of the note attached to this Agreement as Exhibit A
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in exchange for the forgiveness, discharge and release by the Investor of the
Old Notes.
1.2 Satisfaction of Old Notes; Delivery of the New Notes.
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Simultaneously with the execution and delivery hereof, without any further
action on the part of the Investor, Parent, Sub or any other person or entity,
(a) the Old Notes shall be forever and completely forgiven, discharged, released
and satisfied and (b) Parent and Sub hereby jointly issue, sell and deliver the
New Notes to the Investor and the Investor hereby sells and delivers the Old
Notes to the account of the Trustee at the Depository Trust Company, for the
benefit of Parent. A physical certificate representing the New Notes shall be
delivered to Investor as soon as reasonably practical after the date hereof.
1.3 Payment of Interest on Old Notes; Offset Against Interim Period
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with Respect to New Notes.
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Simultaneously with the execution and delivery hereof, Parent and/or Sub will
pay to Investor $_________, which amount represents the difference between (
a) the accrued and unpaid interest with respect to the Old Notes exchanged,
from July 15, 2002 until the date hereof and (b) the amount equal to the
interest that would have accrued from September 30, 2002 to the date hereof,
under the Indenture, assuming that the New Notes were issued on such date. The
foregoing offset will entitle the Investor or any subsequent holder of the New
Notes to receive the full amount of interest due and payable on the
notes outstanding under the Indenture on March 31, 2003, the next scheduled
interest payment date under the Indenture.
1.4 Further Assurances.
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The Investor, from time to time after the date hereof, at Parent's request,
will execute, acknowledge, and deliver to Parent such other instruments of
conveyance and transfer and will take such other actions and execute and
deliver such other documents, certifications, and further assurances as Parent
may reasonably require in order to vest more effectively in Parent, or to put
Parent more fully in possession of, the Old Notes. Each of the parties hereto
will cooperate with the other and execute and deliver to the other parties
hereto such other instruments and documents and take such other actions as may
be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence, and confirm the intended purposes of this
Agreement. Each party shall bear its own costs and expenses in compliance with
this Section 1.4.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
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Parent and Sub hereby jointly represent and warrant to the Investor as
of the date hereof as follows:
2.1 Organization and Standing.
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Each of Parent and Sub is a corporation duly organized and validly existing
under the laws of the State of Delaware or New York, as applicable, and is in
good standing under such laws. Each of Parent and Sub has all requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
2.2 Corporate Power.
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Each of Parent and Sub has all requisite legal and corporate power and
authority to (a) execute and deliver this Agreement, (b) jointly offer, sell
and issue the New Notes hereunder and (c) carry out and perform its obligations
under the terms of this Agreement.
2.3 Authorization.
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All corporate action on the part of Parent and Sub necessary for the
authorization, execution, delivery and performance of this Agreement by Parent
and Sub has been taken. This Agreement constitutes valid and legally binding
obligations of Parent and Sub, enforceable in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
2.4 Litigation.
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There are no actions, suits, proceedings or investigations pending or, to
Parent and Sub's knowledge, threatened against Parent, Sub or their respective
properties before any court or governmental agency with respect to this
Agreement.
2.5 Governmental Consents.
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No consent, approval, qualification or authorization of registration,
designation, declaration or filing with, any local, state or federal
governmental authority on the part of Parent and Sub is required in connection
with the valid execution, delivery or performance of this Agreement, or the
offer, sale or issuance of the New Notes, or the consummation of any
transaction contemplated hereby, except for such filings as will be made by
Parent and Sub to comply with applicable state and federal securities laws.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTOR
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The Investor agrees with, and represents and warrants to, Parent and
Sub as follows:
3.1 Ownership of Old Notes; No Liens.
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The Old Notes being tendered hereby are legally and beneficially owned by the
Investor as of the date hereof, free and clear of any liens, charges, claims,
encumbrances, interests and restrictions of any kind, and Parent will acquire
good, indefeasible and unencumbered title to the Old Notes, free and clear of
all liens, charges, claims encumbrances, interests and restrictions of any
kind, upon receipt thereof.
3.2 Investment Experience.
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The Investor has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to Parent and Sub
such that the Investor is capable of evaluating the merits and risks of its
investment in Parent and Sub and has the capacity to protect its own interests.
The Investor is an "accredited investor" as defined in subparagraphs (1), (2),
(3) or (7) of Rule 501(a) promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Investor has not acquired the Old Notes on
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behalf of, or at the request of, Parent or Sub or any of their respective
affiliates. The sale of the Old Notes by the Investor (a) was privately
negotiated with Parent and Sub in an independent transaction and not solicited
by or on behalf of the Parent, Sub or any of their respective affiliates or
advisors and (b) does not violate any rules or regulations applicable to the
Investor or its business.
3.3 Investment.
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The Investor is acquiring the New Notes for investment for the Investor's own
account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof. The Investor understands that the
New Notes have not been, and will not be when issued, registered under the
Securities Act or any state securities laws by reason of specific exemptions
from the registration provisions of the Securities Act and such state laws, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the representations as expressed
herein. The Investor understands that the Investor must bear the economic risk
of this investment for an indefinite period of time because the New Notes are
not registered under the Securities Act or any applicable state's securities
laws. The Investor agrees that Investor will not attempt to pledge, transfer,
convey or otherwise dispose of the New Notes, except in accordance with the
legend set forth in Section 3.9 hereof.
3.4 Access to Information.
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The Investor and its advisors have had an opportunity to discuss with, ask
questions of and to receive answers from Parent and Sub's management regarding
the business and financial condition of Parent and Sub. The Investor represents
and warrants that, to the extent the Investor has deemed necessary, the
Investor has consulted with the Investor's attorneys, financial advisors and
others regarding all financial, securities and tax aspects of the proposed
investment. The Investor and the Investor's advisors have sufficient knowledge
and experience in business and financial matters to evaluate Parent and Sub, to
evaluate the risk of an investment in Parent and Sub, to make an informed
investment decision with respect thereto, and to protect the Investor's
interest in connection with the Investor's purchase of the New Notes, without
need for the additional information that would be required to be included in a
registration statement effective under the Securities Act. The Investor
represents and warrants that in connection with its purchase of the New Notes,
no oral or written representations or warranties have been made to the Investor
other than as set forth herein. The Investor acknowledges that no person is
authorized to give any information or to make any statement not contained in
the Confidential Offering Memorandum, dated October 31, 2002 (the "Confidential
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Offering Memorandum"), a copy of which the Investor acknowledges has previously
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been received by it, and that
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any information or statement not contained therein or contemplated or permitted
thereby must not be relied upon as having been authorized by Parent and Sub.
The Investor also acknowledges that any information which may have been made
or provided to the Investor prior to the date of the Confidential Offering
Memorandum is superseded by the Confidential Offering Memorandum. The Investor
acknowledges that by reason of its business or financial experience or the
business or financial experience of its professional advisor(s), it has the
capacity to protect its own interests in connection with its purchase of the
New Notes. The Investor's professional advisor(s) are unaffiliated with and are
not compensated by Parent and Sub, or any affiliate or selling agent of Parent
and Sub, and, as a regular part of their business, are customarily relied upon
by others for investment recommendations or decisions and are customarily
compensated for such services either specifically or by way of compensation for
other related professional services.
3.5 Organization and Standing.
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The Investor is a [_________] duly organized and validly existing under the
laws of the State of [_______________] and is in good standing under such laws.
The Investor has all requisite legal power and authority to own and operate its
properties and assets, and to carry on its business as presently conducted.
3.6 Authorization; Power.
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The Investor has all requisite legal power and authority to (a) execute and
deliver this Agreement and to carry out and perform its obligations under the
terms of this Agreement and (b) sell and deliver the Old Notes hereunder. This
Agreement, when executed and delivered by the Investor, will constitute a valid
and legally binding obligation of the Investor, enforceable in accordance with
its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
3.7 Broker's and Finders' Fees.
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The Investor has not incurred, and will not incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
3.8 Consent and Approvals; No Violation.
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There is no requirement applicable to the Investor to make any filing with, or
to obtain any permit, authorization, consent or approval of, any governmental
or regulatory authority or any third party as a condition to the lawful
consummation by the Investor of the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by the Investor and the
consummation of the transactions contemplated hereby will not (a) result in a
breach of or default under or require the consent or approval of any party to
any material written or oral agreement, contract or commitment of the Investor,
(b) violate any provision of the organizational documents of the Investor or
(c) violate any law or order relating to the Investor. The Investor hereby
acknowledges that it is familiar with its responsibilities under federal and
state securities laws relating to restrictions on trading in securities of any
issuer while in possession of material, non-public information, and
restrictions on sharing such information with other persons who may engage in
such trading. The Investor represents and warrants to, and agrees with, the
Parent and Sub that neither the Investor nor any of its directors, officers,
employees, agents or representatives has violated, and none of them will
violate, any of such restrictions with respect to the Old Notes, New Notes or
any other securities of Parent and/or Sub.
3.9 Legend.
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It is understood that the certificate or certificates representing the New
Notes shall bear a legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
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OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE WHICH IS TWO
YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE
144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED
SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER OR
ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") ONLY (A) TO AN ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND IN EACH OF THE FOREGOING
CASES A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH
CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR
ANY OTHER APPLICABLE JURISDICTION. THE HOLDER OF THIS SECURITY AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
ARTICLE 4
REGISTRATION RIGHTS
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4.1. Registered Exchange Offer.
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(a) Parent and Sub shall, at their sole cost and expense, prepare and,
not later than 60 days after the date hereof, file with the Securities and
Exchange Commission (the "Commission") a registration statement (the "Exchange
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Offer Registration Statement") on an appropriate form under the Securities Act,
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with respect to a proposed offer (the "Registered Exchange Offer") to the
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holders of the Restricted Notes
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(the "Holders") who are not prohibited by any participating in the Registered
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Exchange Offer, to issue and deliver to such Holders, in exchange for the
Restricted Notes, a like aggregate principal amount of debt securities of
Parent and Sub issued under the Indenture, identical in all respects to the
Restricted Notes and registered under the Securities Act (the "Exchange
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Securities"). Parent and Sub shall use their commercially reasonable best
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efforts: (i) to cause such Exchange Offer Registration Statement to become
effective under the Securities Act as soon as reasonably practical after filing
and (ii) to keep the Exchange Offer Registration Statement effective for not
less than 20 business days (to the extent required by applicable law, or
longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the
"Exchange Offer Registration Period") and thereafter until such time as Parent
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and Sub have jointly issued Exchange Securities in exchange for all Restricted
Notes that have been properly tendered for exchange during the Exchange Offer
Registration Period.
(b) Subject to the effectiveness of the Exchange Offer Registration
Statement, Parent and Sub (i) will be entitled to consummate the Registered
Exchange Offer as soon as reasonably practical, subject to applicable law, after
such commencement (provided that Parent and Sub have accepted all the Restricted
Notes theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) subject to the receipt of the certifications
referenced in Section 4.2(d) below, will be required to consummate the
Registered Exchange Offer as soon as reasonably practical, subject to applicable
law, on or after the 20th business day following commencement.
(c) Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, Parent and Sub shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange the Restricted Notes for
Exchange Securities (assuming that such Holder (i) is not a Broker-Dealer (as
defined in the Indenture), (ii) is not participating in a distribution of the
Exchange Securities and (iii) is not an affiliate (as defined in Rule 144) of
either Parent or Sub) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the several states of
the United States.
4.2 Procedures.
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(a) In connection with the Registered Exchange Offer, Parent and
Sub shall:
(i) mail 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 not less
than 20 business days (to the extent required by applicable law, or
longer, if required by applicable law) after the date notice thereof
is mailed to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer which may be the Trustee or an affiliate of
the Trustee;
(iv) permit Holders to withdraw tendered Restricted Notes at
any time prior to the close of business, New York City time, on the
last business day on which the Registered Exchange Offer shall remain
open; and
(v) otherwise comply with all applicable laws.
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(b) As soon as practicable after the close of the Registered
Exchange Offer, Parent and Sub shall:
(i) accept for exchange all the Restricted Notes
validly tendered and not withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all the
Restricted Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of the Restricted Notes a principal amount of Exchange
Securities equal in principal amount to the Restricted Notes of such
Holder so accepted for exchange.
(c) Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Restricted Notes surrendered in exchange therefor
or, if no interest has been paid on the Restricted Notes, from September 30,
2002 (in accordance with the offset provisions set forth in Section 1.3 hereof).
(d) In accordance with Section 2.5(f) of the Indenture, each Holder
participating in the Registered Exchange Offer shall be required to certify in
the applicable Letter of Transmittal that (i) it is not a Broker-Dealer (as
defined in the Indenture), (ii) it is not participating in a distribution of the
Exchange Securities and (iii) it is not an affiliate (as defined in Rule 144) of
either Parent or Sub. In addition, each Holder participating in the Registered
Exchange Offer shall be required to provide any other certifications, documents
and information, as applicable, required by the Indenture (including, without
limitation, Section 2.5 of the Indenture) in order for such Holder to
participate in the Registered Exchange Offer.
(e) Notwithstanding any other provisions hereof, Parent and Sub will
ensure that (i) the Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer 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 and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an 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 light of the
circumstances under which they were made, not misleading.
ARTICLE 5
MISCELLANEOUS
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5.1 Entire Agreement; Successors and Assigns.
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This Agreement and the exhibit hereto constitute the entire agreement by and
among Parent, Sub and the Investor relative to the subject matter hereof and
supersede any previous agreement by and among Parent, Sub and the Investor with
respect to the same subject matter. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective executors,
administrators, heirs, successors and assigns of the parties.
5.2 Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to the conflicts of laws
principles thereof.
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5.3 Counterparts.
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This Agreement may be executed in counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
5.4 Headings.
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The section headings of this Agreement are for convenience and shall
not by themselves determine the interpretation of this Agreement.
5.5 Notices.
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Any notice required or permitted hereunder shall be given in writing and shall
be conclusively deemed effectively given upon personal delivery, or delivery by
overnight courier, or telecopy (with confirmation of receipt), or five (5) days
after deposit in the United States mail, by registered or certified mail,
postage prepaid, addressed:
if to Parent and Sub: ▇▇▇▇▇'▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇▇ & Bird LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28280-4000
Attn: ▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Investor:
Attn:
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Telecopy:
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with a copy to:
Attn:
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Telecopy:
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5.6 Survival of Warranties.
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The representations and warranties of the parties contained in or made
pursuant to this Agreement shall survive the date hereof.
5.7 Amendment of Agreement.
----------------------
Any provision of this Agreement may be amended by a written instrument
signed by Parent, Sub and the Investor.
5.8 Expenses.
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Each party hereto will pay their respective fees and expenses incurred by them
in connection with the transactions contemplated in this Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above set forth.
▇▇▇▇▇'▇ CORPORATION
By:
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Name:
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Title:
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▇▇▇▇▇'▇ HOLDINGS, INC.
By:
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Name:
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Title:
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[Signatures continued on next page]
Investor Signature Page to Note Exchange
And Registration Rights Agreement
[INVESTOR]
By:
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Name:
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Title:
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EXHIBIT A
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FORM OF NEW NOTES
FACE OF SECURITY
No. R1 $
--------------------
▇▇▇▇▇'▇ CORPORATION
AND
▇▇▇▇▇'▇ HOLDINGS, INC.
12 3/4% Senior Notes Due 2007
▇▇▇▇▇'▇ Corporation, a Delaware corporation (formerly known as
Advantica Restaurant Group, Inc.) ("Denny's"), and ▇▇▇▇▇'▇ Holdings, Inc., a New
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York corporation ("Denny's Holdings," and together with Denny's, the "Issuers"),
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for value received hereby promise to pay to _________________________ or
registered assigns the principal sum of ______________ Dollars at the Issuers'
office or agency for said purpose on September 30, 2007 in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, semi-annually,
on March 31 and September 30 of each year, commencing on September 30, 2002, on
said principal sum in like coin or currency at the rate per annum set forth
above at said office or agency from the March 31 or the September 30, as the
case may be, next preceding the date of this Security to which interest on the
Securities has been paid or duly provided for, unless the date hereof is a date
to which interest on the Securities has been paid or duly provided for, in which
case from the date of this Security, or unless no interest has been paid or duly
provided for on the Securities, in which case from April 15, 2002, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after March 15 or September 15, as the case may
be, and before the following March 31 or September 30, this Security shall bear
interest from such March 31 or September 30; provided that, if the Issuers shall
default in the payment of interest due on such March 31 or September 30, then
this Security shall bear interest from the next preceding March 31 or September
30 to which interest on the Securities has been paid or duly provided for, or,
if no interest has been paid or duly provided for on the Securities, from April
15, 2002. The interest so payable on any March 31 or September 30 will, except
as otherwise provided in the Indenture referred to on the reverse hereof, be
paid to the person in whose name this Security is registered at the close of
business on the March 15 or September 15 next preceding such March 31 or
September 30, whether or not such day is a business day; provided that interest
may be paid, at the option of the Issuers, by mailing a check therefor payable
to the registered holder entitled thereto at his last address as it appears on
the Security register or by wire transfer to such holder.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate of
authentication hereof, shall have been duly signed by the Trustee acting under
the Indenture.
A-1
IN WITNESS WHEREOF, each of the Issuers has caused this instrument to
be duly executed under its corporate seal.
DATED: November , 2002
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[SEAL] ▇▇▇▇▇'▇ CORPORATION,
a Delaware corporation
By:
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Name:
Title:
By:
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Name:
Title:
[Signatures continued on next page]
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[SEAL] ▇▇▇▇▇'▇ HOLDINGS, INC.,
a New York corporation
By:
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Name:
Title:
By:
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Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Indenture.
U.S. Bank National Association, as Trustee
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Authorized Signatory
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REVERSE OF SECURITY
▇▇▇▇▇'▇ CORPORATION
AND
▇▇▇▇▇'▇ HOLDINGS, INC.
12 3/4% Senior Notes Due 2007
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE
WHICH IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED
SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE
OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO AN ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND IN EACH OF THE FOREGOING
CASES A CERTIFICATE OF TRANSFER IN THE
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FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF
ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION. THE HOLDER OF THIS
SECURITY AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
This Security is one of a duly authorized issue of debt securities of
each Issuer, limited to the aggregate principal amount of $120,389,000.00
(except as otherwise provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of April 15, 2002 (the "Indenture"),
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duly executed and delivered by the Issuers to U.S. Bank National Association, as
Trustee (herein called the "Trustee"); provided, that Securities issued on the
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Original Issue Date shall not exceed $70,389,000.00 in aggregate principal
amount and Securities issued thereafter (other than pursuant to an Exchange
Offer or otherwise in replacement of outstanding Securities) shall not exceed
$50,000,000 in aggregate principal amount. Reference is hereby made to the
Indenture and all indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuers and the holders (the words "holders" or "holder"
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meaning the registered holders or registered holder) of the Securities. Defined
terms used without definition herein shall have the meanings ascribed to them in
the Indenture.
If an Event of Default, other than in respect of certain events of
bankruptcy or insolvency as set forth in the Indenture, shall have occurred and
be continuing, the Trustee or the holders of at least 30% (or 25% in the case of
an Event of Default with respect to payment of principal of, premium, if any, or
interest on, the Securities) in aggregate principal amount of the Securities
then outstanding may declare in writing 100% of the unpaid principal amount of,
and any accrued and unpaid interest on, the Securities to be due and payable
immediately; provided, however, that if any Senior Indebtedness is outstanding
pursuant to the Credit Agreement, then all the Securities shall be due and
payable upon the earlier of (x) the day that is five Business Days after the
provision to the Issuers and the Credit Agent of such written notice of
acceleration unless such Event of Default has been cured or waived prior to such
date and (y) the date of acceleration of any Senior Indebtedness under the
Credit Agreement. Upon an Event of Default arising from certain events of
bankruptcy or insolvency as described in the Indenture, the unpaid principal of
and any accrued and unpaid interest on all the Securities will become
immediately due and payable without further action or notice. The Indenture
provides that in certain events a declaration of acceleration and its
consequences resulting from a default under certain other Indebtedness of an
Issuer or its Subsidiaries may be automatically annulled and that the holders of
a majority in aggregate principal amount of the Securities then outstanding may,
on behalf of the holders of all of the Securities, waive any past Default or
Event of Default under the Indenture and its consequences, except a continuing
Default or Event of Default in the payment of principal of, premium, if any, or
interest on any of the Securities. Any such consent or waiver by the holder of
this Security (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Security and any Security which may be issued in exchange or substitution
herefor, whether or not any notation thereof is made upon this Security or such
other Securities.
The Indenture permits the Issuers and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding, evidenced as in the Indenture provided, to
enter into supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Securities; provided that no such supplemental
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indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce the premium, if any, payable thereon, or reduce any
amount payable on the redemption thereof, or impair or affect the right of any
holder to institute suit for the payment thereof, or waive a default in the
payment of principal of, premium, if any, or interest on any Security, change
the currency of payment of principal of, premium, if any, or interest on any
Security, or modify any provision in the Indenture with respect to the priority
of the Securities in right of payment without the consent of the holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities, the
consent of the holders of which is required for any such supplemental
indenture, wiithout the consent of the holders of each Security then
outstanding.
The Securities are senior unsecured obligations of the Issuers and will
rank pari passu in right of payment to all Senior Indebtedness of the Issuers.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuers, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered Securities without
coupons in denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Issuers referred to on the face hereof
and in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations.
Upon due presentment for registration of transfer of this Security at
the above-mentioned office or agency of the Issuers, a new Security or
Securities of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. Securities may be
presented for registration of transfer in part only in multiples of $1,000. No
service charge shall be made for any such transfer, but the Issuers may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
Except as provided below, the Securities may not be redeemed, either in
whole or in part, at the option of the Issuers prior to September 30, 2004. On
and after September 30, 2004, the Securities will be redeemable, in whole or in
part, at the option of the Issuers, at the redemption prices (expressed as
percentages of the principal amount) set forth below, plus accrued and unpaid
interest, if any, to the redemption date, if redeemed during the 12-month period
beginning September 30 of the years indicated below:
YEAR PERCENTAGE
2004 .......................... 106.3750%
2005 ................. ........ 103.1875%
2006 and thereafter .......................... 100.0000%
provided that, if the dated fixed for redemption is on March 31, or September
30, then the interest payable on such date shall be paid to the holder of
record on the March 15 or September 15 next preceding such March 31 or
September 30.
Notwithstanding the foregoing, prior to September 30, 2004, the
Issuers may redeem up to 35% of the aggregate principal amount of Securities
outstanding on the date of the Indenture at a redemption
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price (expressed as a percentage of the principal amount) of 112.75%, plus
accrued and unpaid interest, if any, to the redemption date, from the net
proceeds of any Public Offering.
Notice of redemption shall be mailed at least 30 and not more than 60
days prior to the date fixed for redemption to each holder of Securities to be
redeemed at its last registered address. Securities may be redeemed in part
only in multiples of $1,000.
Subject to the terms of the Indenture, if an Issuer consummates an
Asset Sale or sells, leases, conveys or otherwise disposes of a Business
Segment, such Issuer shall be obligated to apply the Net Proceeds thereof to
one or more of the following in such combination as such Issuer may choose:
(i) an Investment in another asset or business in the same line of business as,
or a line of business similar to that of, the line of business of Denny's and
its Subsidiaries (other than in the case of any Asset Sale of an Asset Segment
in any of the Denny's Holdings Group or any sale, lease, conveyance or other
disposition of any Business Segment in any of the Denny's Holdings Group, any
Investment by any of the Denny's Holdings Group in any of the Denny's Group)
and such Investment occurs within 366 days of such Asset Sale or such sale,
lease, conveyance or other disposition of a Business Segment, (ii) an offer,
expiring within 366 days of such Asset Sale or such sale, lease, conveyance or
other disposition of a Business Segment, to repurchase Securities at a price
not less than 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the redemption date (a "Net Proceeds Offer") or (iii) the
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purchase, redemption or other prepayment or repayment of outstanding Senior
Indebtedness within 366 days of such Asset Sale or such sale, lease, conveyance
or other disposition of a Business Segment, provided, that any amounts used to
repay Indebtedness outstanding under the Old Notes shall be applied only as and
when permitted by the Indenture; provided, however, that if the net amount not
invested pursuant to clause (i) above or applied pursuant to clause (iii) above
is less than $15,000,000, such Issuer shall not be further obligated to offer
to repurchase Securities pursuant to clause (ii) above. Holders of Securities
that are the subject of an offer to repurchase shall receive an offer to
repurchase from the Issuers prior to any related repurchase date, and may elect
to have such Securities repurchased by completing the form entitled "Option of
Holder to Elect to Have Security Repurchased" appearing below. Notwithstanding
any provision of the Indenture to the contrary, the Issuer that originally
received the Net Proceeds may, for a period of 120 days after the last date on
which holders of Securities are permitted to tender their Securities in a Net
Proceeds Offer, use any Net Proceeds that were available to make such Net
Proceeds Offer but not used to repurchase Securities pursuant thereto, to
purchase, redeem or otherwise acquire or retire for value securities of such
Issuer ranking junior in right of payment to the Securities at a price, stated
as a percentage of the principal or face amount of such junior securities, not
greater than the price, stated as a percentage of the principal amount of the
Securities, offered in the Net Proceeds Offer; provided that, if the Net
Proceeds Offer is for a principal amount (the "Net Proceeds Offer Amount") of
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the Securities less than the aggregate principal amount of the Securities then
outstanding, then the Net Proceeds available for use by such Issuer for such a
purchase, redemption or other acquisition or retirement for value of junior
securities shall not exceed the Net Proceeds Offer Amount.
Subject to payment by the Issuers (by deposit with the Trustee or
otherwise) of a sum sufficient to pay the amount due on redemption, interest on
this Security (or portion hereof if this Security is redeemed or repurchased in
part) shall cease to accrue upon the date duly fixed for redemption or
repurchase of this Security (or portion hereof if this Security is redeemed or
repurchased in part), and all rights of the holder with respect to such
redeemed Security (or portion thereof if this Security is redeemed or
repurchased in part) hereunder or under the Indenture, except the right to
payment of amounts payable on such redemption or repurchase, shall cease.
The Issuers, the Trustee, and any authorized agent of the Issuers or
the Trustee, may deem and treat the registered holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other
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than the Issuers or the Trustee or any authorized agent of the Issuers or the
Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the
face hereof, interest hereon and for all other purposes, and neither the
Issuers nor the Trustee nor any authorized agent of the Issuers or the Trustee
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or interest on this Security, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of either Issuer or of any successor
corporation, either directly or through such Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released. Nothing in this provision limits the
liability, if any, of any such incorporator, officer, director or shareholder,
as such, under the federal securities laws.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the applicable Registration Rights Agreement.
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OPTION OF HOLDER TO ELECT TO HAVE SECURITY REPURCHASED
If you have received a Net Proceeds Offer from the Issuers and want to elect to
have this Security repurchased by the Issuers pursuant to Section 11.5 of the
Indenture, check the box: [ ]
If you have received a Change of Control Offer from the Issuers and want to
elect to have this Security repurchased by the Issuers pursuant to Section 3.18
of the Indenture, check the box: [ ]
If you want to elect to have any part of this Security repurchased by the
Issuers pursuant to Section 3.18 of the Indenture, state the amount:
$________________________
Date: _______________________ Your Signature:
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(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
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