RITE AID CORPORATION.<\/p>\n
\n
$650,000,000 8.00% Senior Secured Notes due 2020<\/p>\n
\n
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT<\/p>\n
\n
August 16, 2010<\/p>\n
\n
Citigroup Global Markets Inc. <\/p>\n
Wells Fargo Securities, LLC <\/p>\n
Banc of America Securities LLC <\/p>\n
Credit Suisse Securities (USA) LLC <\/p>\n
As Initial Purchasers <\/p>\n
c\/o Citigroup Global Markets Inc.
\n388 Greenwich Street
\nNew York, New York 10013<\/p>\n<\/p>\n
Ladies and Gentlemen:<\/p>\n<\/p>\n
Rite Aid Corporation, a Delaware corporation (the “Company”), proposes to
\nissue and sell, upon the terms set forth in a purchase agreement dated August 9,
\n2010 (the “Purchase Agreement”), to the initial purchasers set forth in the
\nPurchase Agreement (the “Initial Purchasers”), $650,000,000 aggregate principal
\namount of its 8.00% Senior Secured Notes due 2020 (the “Securities”) to be
\nguaranteed by the subsidiary guarantors listed on Schedule I hereto (the
\n“Subsidiary Guarantors”) relating to the initial placement of the Securities
\n(the “Initial Placement”). Capitalized terms used but not defined herein shall
\nhave the meanings given to such terms in the Purchase Agreement.<\/p>\n<\/p>\n
As an inducement to the Initial Purchasers to enter into the Purchase
\nAgreement, and as satisfaction of the conditions thereunder, the Company and the
\nSubsidiary Guarantors agree with you for your benefit and the benefit of the
\nholders from time to time of the Securities (including the Initial Purchasers)
\nand the Exchange Securities (as defined herein) (each a “Holder” and
\ncollectively, the “Holders”), as follows:<\/p>\n<\/p>\n
1. Registered Exchange Offer<\/u>. Unless the Registered Exchange Offer (as
\ndefined herein) shall not be permitted by applicable law or applicable
\ninterpretation of the staff of the Securities and Exchange Commission (the “SEC”
\nor “Commission”), the Company shall (i) prepare and, not later than 150 days
\nfollowing the date of the original issuance of the Securities (the date of such
\nfiling being referred to herein as the “Filing Date”), file with the Commission
\na registration statement (the “Exchange Offer Registration Statement”) on an
\nappropriate form under the Securities Act with respect to a proposed offer to
\nthe Holders of the Securities (the “Registered Exchange Offer”) to issue and
\ndeliver to such Holders, in exchange for the Securities a like aggregate
\nprincipal amount of debt securities of the Company (the “Exchange Securities”)
\nthat are<\/p>\n<\/p>\n<\/p>\n
\n<\/p>\n
substantially identical in all material respects to the Securities, except
\nfor the transfer restrictions relating to the Securities, (ii) use its
\ncommercially reasonable efforts to cause the Exchange Offer Registration
\nStatement to become effective under the Securities Act no later than 210 days
\nafter the Filing Date and (iii) as soon as practicable after the effectiveness
\nof the Exchange Offer Registration Statement, initiate the Registered Exchange
\nOffer as set forth in the following paragraph. The Exchange Securities will be
\nissued under the same indenture as the Securities (the “Indenture”) to be dated
\nas of August 16, 2010, between the Company, the Subsidiary Guarantors and the
\nTrustee or such other bank or trust company that is reasonably satisfactory to
\nthe Initial Purchasers, as trustee (the “Trustee”), with such modifications as
\nmay be appropriate to account for the registration of the Exchange Securities
\nunder the Securities Act.<\/p>\n<\/p>\n
Upon the effectiveness of the Exchange Offer Registration Statement, the
\nCompany shall commence the Registered Exchange Offer, it being the objective of
\nsuch Registered Exchange Offer to enable each Holder electing to exchange
\nSecurities for Exchange Securities (assuming that such Holder (a) is not an
\naffiliate of the Company or an Exchanging Dealer (as defined herein) not
\ncomplying with the requirements of the next sentence, (b) is not holding
\nSecurities that have, or that are reasonably likely to have, the status of an
\nunsold allotment in the Initial Placement, (c) acquires the Exchange Securities
\nin the ordinary course of such Holder153s business and (d) has no arrangements or
\nunderstandings with any person to participate, and is not participating, in the
\ndistribution of the Exchange Securities) and to trade such Exchange Securities
\nfrom and after their receipt without any limitations or restrictions under the
\nSecurities Act and without material restrictions under the securities laws of
\nthe several states of the United States. The Company, the Holders and each
\nExchanging Dealer acknowledge that, pursuant to current interpretations by the
\nCommission153s staff of Section 5 of the Securities Act, each Holder that is a
\nBroker-Dealer electing to exchange Securities, acquired for its own account as a
\nresult of market-making activities or other trading activities, for Exchange
\nSecurities (an “Exchanging Dealer”), is required, in connection with a sale of
\nany such Exchange Securities received by such Exchanging Dealer pursuant to the
\nRegistered Exchange Offer, to deliver a prospectus containing substantially the
\ninformation set forth (i) in Annex A hereto on the cover of such prospectus,
\n(ii) in Annex B hereto in the “Exchange Offer Procedures” section and the
\n“Purpose of the Exchange Offer” section of such prospectus and (iii) in Annex C
\nhereto in the “Plan of Distribution” section of such prospectus, in each case
\nsubject to any changes, additions, deletions or moving of such disclosure
\nrequired by the SEC.<\/p>\n<\/p>\n
In connection with the Registered Exchange Offer, the Company shall:<\/p>\n<\/p>\n
(a) mail to each Holder of Securities a copy of the prospectus forming part
\nof the Exchange Offer Registration Statement, together with an appropriate
\nletter of transmittal and related documents;<\/p>\n<\/p>\n
(b) keep the Registered Exchange Offer open for not less than 30 days and not
\nmore than 60 business days (or, in each case, longer, if required by applicable
\nlaw) after the date on which notice of the Registered Exchange Offer is mailed
\nto the Holders of Securities and the Initial Purchasers;<\/p>\n<\/p>\n<\/p>\n
2<\/p>\n
\n
(c) utilize the services of a depositary for the Registered Exchange Offer
\nwith an address in the Borough of Manhattan, The City of New York;<\/p>\n<\/p>\n
(d) permit Holders to withdraw tendered Securities at any time prior to the
\nend of the Registered Exchange Offer, as set forth in the materials originally
\nmailed to Holders of Securities or otherwise extended by the Company;<\/p>\n<\/p>\n
(e) comply with all requests of the Securities and Exchange Commission in
\norder to consummate the Registered Exchange Offer; and<\/p>\n<\/p>\n
(f) comply in all respects with all laws that are applicable to the
\nRegistered Exchange Offer.<\/p>\n<\/p>\n
As soon as practicable after the close of the Registered Exchange Offer, the
\nCompany shall:<\/p>\n<\/p>\n
(a) accept for exchange all Securities tendered and not validly withdrawn
\npursuant to the Registered Exchange Offer;<\/p>\n<\/p>\n
(b) deliver to the Trustee for due cancelation all Securities so accepted for
\nexchange; and<\/p>\n<\/p>\n
(c) cause the Trustee for the Exchange Securities promptly to authenticate
\nand deliver to each Holder, Exchange Securities equal in principal amount to the
\nSecurities of such Holder so accepted for exchange.<\/p>\n<\/p>\n
The Company shall use its best efforts to keep the Exchange Offer
\nRegistration Statement effective and to amend and supplement the prospectus
\ncontained therein in order to permit such prospectus to be used by all persons
\nsubject to the prospectus delivery requirements of the Securities Act for such
\nperiod of time as such persons must comply with such requirements in order to
\nresell the Exchange Securities; provided<\/u> that (i) in the case where such
\nprospectus and any amendment or supplement thereto must be delivered by an
\nExchanging Dealer, such period shall be the earlier of 210 days from the close
\nof the Registered Exchange Offer and the date on which all Exchanging Dealers
\nhave sold all Exchange Securities held by them and (ii) the Company shall make
\nsuch prospectus and any amendment or supplement thereto available to any
\nBroker-Dealer for use in connection with any resale of any Exchange Securities
\nfor a period of not less than 90 days after the consummation of the Registered
\nExchange Offer.<\/p>\n<\/p>\n
Notwithstanding the foregoing, during any 365-day period, the Company may
\nsuspend the effectiveness of the Exchange Offer Registration Statement or the
\nShelf Registration Statement (i) in relation to a Shelf Registration Statement,
\nsolely for the purpose of filing of a post-effective amendment to such Shelf
\nRegistration Statement for such time as is reasonably necessary to incorporate
\nannual audited financial information, quarterly financial information or other
\ninformation required by the Commission with respect to the Company (a “Shelf
\nSuspension Period”) where such post-effective amendment is not yet effective and
\nneeds to be declared effective to permit Holders of<\/p>\n<\/p>\n<\/p>\n
3<\/p>\n
\n
the Securities to use the related prospectus and the Company is using its
\ncommercially reasonable best efforts to have such post-effective amendment
\ndeclared effective or (ii) for up to 2 periods (each such period pursuant to
\nthis clause (ii) a “Suspension Period”) of up to 45 consecutive days (except for
\nthe consecutive 45-day period immediately prior to maturity of the Securities),
\nbut no more than an aggregate of 75 days during any 365-day period, if there is
\na possible acquisition or business combination or other transaction, business
\ndevelopment or event involving the Company that may require disclosure in the
\nExchange Offer Registration Statement or the Shelf Registration Statement and
\nthe Company determines in the exercise of its reasonable judgment that such
\ndisclosure is not in the best interests of the Company and its stockholders or
\nobtaining any financial statements relating to an acquisition or business
\ncombination required to be included in the Exchange Offer Registration Statement
\nor the Shelf Registration Statement would be impracticable. In such a case, the
\nCompany shall promptly notify any such Broker-Dealers of the suspension of the
\neffectiveness of the Exchange Offer Registration Statement or the Shelf
\nRegistration Statement, as the case may be, provided<\/u> that such notice
\nshall not require the Company to disclose the possible acquisition or business
\ncombination or other transaction, business development or event if the Company
\ndetermines in good faith that such acquisition or business combination or other
\ntransaction, business development or event should remain confidential. Upon the
\nabandonment, consummation or termination of the possible acquisition or business
\ncombination or other transaction, business development or event or the
\navailability of the required financial statements with respect to a possible
\nacquisition or business combination, the suspension of the use of the Exchange
\nOffer Registration Statement or the Shelf Registration Statement, as the case
\nmay be, pursuant to this paragraph shall cease and the Company shall promptly
\nnotify such Broker-Dealers that the use of the prospectus contained in the
\nExchange Offer Registration Statement or the Shelf Registration Statement, as
\nthe case may be, as amended or supplemented, as applicable, may resume. The
\nCompany shall provide sufficient copies of the latest version of such prospectus
\nto such Broker-Dealers, promptly upon written request, and in no event later
\nthan one Business Day after such request, at any time during such period.<\/p>\n<\/p>\n
The Indenture shall provide that the Securities and the Exchange Securities
\nshall vote and consent together on all matters as to which the Indenture
\nprovides for voting and consent as one class and that neither the Securities nor
\nthe Exchange Securities will have the right to vote or consent as a separate
\nclass on any matter.<\/p>\n<\/p>\n
Interest on each Exchange Security issued pursuant to the Registered Exchange
\nOffer will accrue from the last interest payment date on which interest was paid
\non the Securities surrendered in exchange therefor or, if no interest has been
\npaid on the Securities, from the date of original issuance of the Securities.\n<\/p>\n<\/p>\n
Each Holder hereby acknowledges and agrees that any such Holder using the
\nRegistered Exchange Offer to participate in a distribution of the Exchange
\nSecurities (x) could not under Commission policy as in effect on the date of
\nthis Agreement rely on the position of the Commission in Morgan Stanley and
\nCo., Inc.<\/u> (pub. avail. June 5, 1991) and Exxon Capital Holdings
\nCorporation<\/u> (pub. avail. May 13, 1988), as interpreted<\/p>\n<\/p>\n<\/p>\n
4<\/p>\n
\n
in the Commission153s letter to Shearman & Sterling dated July 2, 1993 and
\nsimilar no-action letters, and (y) must comply with the registration and
\nprospectus delivery requirements of the Securities Act in connection with any
\nsecondary resale transaction which must be covered by an effective registration
\nstatement containing the selling security holder information required by Item
\n507 or 508, as applicable, of Regulation S-K under the Securities Act if the
\nresales are of Exchange Securities obtained by such Holder in exchange for
\nSecurities acquired by such Holder directly from the Company or one of its
\naffiliates. Accordingly, each Holder participating in the Registered Exchange
\nOffer shall be required to represent to the Company that at the time of the
\nconsummation of the Registered Exchange Offer (i) any Exchange Securities
\nreceived by such Holder will be acquired in the ordinary course of business,
\n(ii) such Holder will have no arrangements or understanding with any person to
\nparticipate, and is not participating, in the distribution of the Securities or
\nthe Exchange Securities within the meaning of the Securities Act, (iii) such
\nHolder is not an affiliate of the Company or, if it is such an affiliate (as
\ndefined in Section 10(e)), such Holder will comply with the registration and
\nprospectus delivery requirements of the Securities Act to the extent applicable,
\n(iv) it is not acting on behalf of any person who, to its knowledge, could not
\ntruthfully make the foregoing representations and (v) it shall have made such
\nother representations as may be reasonably necessary under applicable SEC rules,
\nregulations or interpretations to render the use of Form S-4 or another
\nappropriate form under the Securities Act available or for the Exchange Offer
\nRegistration Statement to be declared effective. To the extent permitted by law,
\nupon the written request of the Initial Purchasers, the Company shall inform the
\nInitial Purchasers of the names and addresses of the Holders to whom the
\nExchange Offer is made, and the Initial Purchasers shall have the right to
\ncontact such Holders and otherwise facilitate the tender of Securities in the
\nExchange Offer.<\/p>\n<\/p>\n
Notwithstanding any other provisions hereof, the Company will ensure that (i)
\nany Exchange Offer Registration Statement and any amendment thereto and any
\nprospectus forming part thereof and any supplement thereto shall comply in all
\nmaterial respects with the Securities Act and the rules and regulations of the
\nCommission thereunder, (ii) any Exchange Offer Registration Statement and any
\namendment thereto shall not, when it becomes effective, contain an untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated therein or necessary to make the statements therein not misleading and
\n(iii) any prospectus forming part of any Exchange Offer Registration Statement,
\nand any supplement to such prospectus, shall not, as of the consummation of the
\nRegistered Exchange Offer, include an untrue statement of a material fact or
\nomit to state a material fact necessary in order to make the statements therein,
\nin the light of the circumstances under which they were made, not misleading.\n<\/p>\n<\/p>\n
If any Initial Purchaser determines that it is not eligible to participate in
\nthe Registered Exchange Offer with respect to the exchange of Securities
\nconstituting any portion of an unsold allotment, at the written request of such
\nInitial Purchaser, the Company shall issue and deliver to such Initial Purchaser
\nor the person purchasing Exchange Securities registered under a Shelf
\nRegistration Statement (as contemplated by Section 2 hereof) from such Initial
\nPurchaser, in exchange for such Securities, a like principal amount of Exchange
\nSecurities. The Company shall use its best efforts to cause<\/p>\n<\/p>\n<\/p>\n
5<\/p>\n
\n
the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
\nSecurities as for Exchange Securities issued pursuant to the Registered Exchange
\nOffer.<\/p>\n<\/p>\n
2. Shelf Registration<\/u>. If (i) because of any change in law or
\napplicable interpretations thereof by the Commission153s staff the Company is not
\npermitted to effect the Registered Exchange Offer as contemplated by Section 1
\nhereof, (ii) the Exchange Offer Registration Statement is not declared effective
\nwithin 210 days after the original issuance of the Securities or the Registered
\nExchange Offer is not consummated within 270 days after the original issuance of
\nthe Securities, (iii) a Holder (including an Initial Purchaser) of Securities
\nnotifies the Company following the completion of the Registered Exchange Offer
\nthat the Securities held by such Holder are not eligible to be exchanged for
\nExchange Securities in the Registered Exchange Offer, (iv) certain Holders
\n(other than the Initial Purchasers) of the Securities are prohibited by law or
\nthe policy of the Commission from participating in the Registered Exchange Offer
\nor the Exchange Securities may not be freely transferable by such Holders other
\nthan by reason of such Holder being an affiliate of the Company (it being
\nunderstood that the requirement that a participating Broker-Dealer deliver the
\nprospectus contained in the Exchange Offer Registration Statement in connection
\nwith sales of Exchange Securities shall not result in such Exchange Securities
\nbeing not “freely transferable”), or (v) in the case of any Initial Purchaser
\nthat participates in the Registered Exchange Offer or acquires Exchange
\nSecurities pursuant to Section 1(d) hereof, such Initial Purchaser does not
\nreceive freely tradeable Exchange Securities in exchange for Securities
\nconstituting any portion of an unsold allotment (it being understood that (x)
\nthe requirement that an Initial Purchaser deliver a prospectus containing the
\ninformation required by Item 507 or 508 of Regulation S-K under the Securities
\nAct in connection with sales of Exchange Securities acquired in exchange for
\nsuch Securities shall not result in such Exchange Securities not being “freely
\ntransferable” and (y) the requirement that an Exchanging Dealer deliver a
\nprospectus in connection with sales of Exchange Securities acquired in the
\nRegistered Exchange Offer in exchange for Securities acquired as a result of
\nmarket-making activities or other trading activities shall not result in such
\nExchange Securities being not “freely transferable”), then the following
\nprovisions shall apply:<\/p>\n<\/p>\n
(a) The Company shall promptly (i) file (but in no event more than 30 days
\nafter so required or requested pursuant to this Section 2) with the Commission,
\nand, if such registration statement is not a registration statement that shall
\nbecome effective upon filing thereof pursuant to General Instruction I.D. of
\nForm S-3 (an “Automatic Shelf Registration Statement”), thereafter shall use
\ntheir reasonable best efforts to cause to be declared effective, a shelf
\nregistration statement on an appropriate form under the Securities Act relating
\nto the offer and sale of the Transfer Restricted Securities (as defined herein)
\nby the Holders thereof from time to time in accordance with the methods of
\ndistribution set forth in such registration statement (hereafter, a “Shelf
\nRegistration Statement” and, together with any Exchange Offer Registration
\nStatement, a “Registration Statement”) or (ii) solely at its option, in lieu of
\nfiling a shelf registration statement and causing such registration statement to
\nbe declared effective as described in clause (i) above, designate, by means of
\nan Officers153 Certificate (as defined in the Indenture), an existing Automatic
\nShelf Registration Statement as a Shelf Registration Statement able to be used
\nfor the offer and sale of the Transfer Restricted Securities.<\/p>\n<\/p>\n<\/p>\n
6<\/p>\n
\n
(b) Subject to any Suspension Periods provided for in Section 1, the Company
\nshall keep the Shelf Registration Statement continuously effective, supplemented
\nand amended, or shall file additional registration statements, as required by
\nthe Securities Act, in order to permit the prospectus forming part thereof to be
\nused by Holders of Transfer Restricted Securities for a period ending on the
\nearlier of (i) one year from the effective date of the Shelf Registration
\nStatement or such shorter period that will terminate when all the Transfer
\nRestricted Securities covered by the Shelf Registration Statement have been sold
\npursuant thereto and (ii) the date the Transfer Restricted Securities cease to
\nbe outstanding (in any such case, such period being called the “Shelf
\nRegistration Period”). The Company shall be deemed not to have complied with
\nthis paragraph (b) if it voluntarily takes any action that would result in
\nHolders of Transfer Restricted Securities covered thereby not being able to
\noffer and sell such Transfer Restricted Securities during that period, unless
\nsuch action is required by applicable law.<\/p>\n<\/p>\n
(c) Notwithstanding any other provisions hereof, the Company shall ensure
\nthat (i) any Shelf Registration Statement and any amendment thereto and any
\nprospectus forming part thereof and any supplement thereto complies in all
\nmaterial respects with the Securities Act and the rules and regulations of the
\nCommission thereunder, (ii) any Shelf Registration Statement and any amendment
\nthereto (in either case, other than with respect to information included therein
\nin reliance upon or in conformity with written information furnished to the
\nCompany by or on behalf of any Holder specifically for use therein (the
\n“Holders153 Information”)) does not, when it becomes effective, contain an untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated therein or necessary to make the statements therein not misleading and
\n(iii) any prospectus forming part of any Shelf Registration Statement, and any
\nsupplement to such prospectus (in either case, other than with respect to
\nHolders153 Information), does not include an untrue statement of a material fact
\nor omit to state a material fact necessary in order to make the statements
\ntherein, in the light of the circumstances under which they were made, not
\nmisleading.<\/p>\n<\/p>\n
3. Additional Interest<\/u>. (a) If (i) neither the Exchange Offer
\nRegistration Statement nor the Shelf Registration Statement, as the case may be,
\nis filed with the Commission on or prior to the date which is 150 days following
\nthe date of the original issuance of the Securities, (ii) the Exchange Offer
\nRegistration Statement or the Shelf Registration Statement, as the case may be,
\nis not declared effective or an Automatic Shelf Registration Statement is not
\ndesignated as a Shelf Registration Statement able to be used for the offer and
\nsale of the Transfer Restricted Securities within 210 days after the original
\nissuance of the Securities, (iii) the Exchange Offer Registration Statement is
\ndeclared effective, but the Registered Exchange Offer is not consummated on or
\nprior to 270 days after the date of the original issuance of Securities, (iv)
\nthe Company is required to file the Shelf Registration Statement in accordance
\nwith Section 2, but the Company does not so file the Shelf Registration
\nStatement or designate an Automatic Shelf Registration Statement to be used for
\nthe offer and sale of the Transfer Restricted Securities and a prospectus
\nsupplement covering the offer and sale of the Transfer Restricted Securities is
\nnot filed with respect to an Automatic Shelf Registration Statement so
\ndesignated on or prior to the 30th day after the Company153s obligation to file
\nsuch Shelf Registration Statement arises, (v) the applicable Registration
\nStatement is filed<\/p>\n<\/p>\n<\/p>\n
7<\/p>\n
\n
and declared effective or so designated but shall thereafter cease to be
\neffective (at any time that the Company is obligated to maintain the
\neffectiveness thereof) without being again effective within 30 days or being
\nsucceeded within 30 days by an additional Registration Statement filed and
\ndeclared effective or immediately effective, provided<\/u> that such 30-day
\nperiod shall toll during a Suspension Period or during any Shelf Suspension
\nPeriod, or (vi) any Suspension Periods exceed, in the aggregate, 75 days during
\nany 365-day period (each such event referred to in clauses (i) through (vi), a
\n“Registration Default”), the Company shall be obligated to pay additional
\ninterest (“Additional Interest”) to each Holder of Transfer Restricted
\nSecurities, during the period of one or more such Registration Defaults, at a
\nrate of 0.25% per annum on the applicable principal amount of Transfer
\nRestricted Securities held by such Holder for the first 90-day period
\nimmediately following the occurrence of a Registration Default, and such rate
\nwill increase by an additional 0.25% with respect to each subsequent 90-day
\nperiod until all Registration Defaults have been cured, provided<\/u> that the
\nmaximum additional rate may in no event exceed 0.50% per annum. Such obligation
\nto pay Additional Interest shall survive until (i) the applicable Registration
\nStatement is filed, (ii) the Exchange Offer Registration Statement is declared
\neffective and the Registered Exchange Offer is consummated with respect to all
\nproperly tendered Securities, (iii) the Shelf Registration Statement is declared
\neffective or (iv) the Shelf Registration Statement again becomes effective (or
\nis superseded by another effective Shelf Registration Statement), as the case
\nmay be. Following the cure of all Registration Defaults, the accrual of
\nAdditional Interest will cease.<\/p>\n<\/p>\n
As used herein, the term “Transfer Restricted Securities” means (i) each
\nSecurity until the date on which such Security has been exchanged for a freely
\ntransferable Exchange Security in the Registered Exchange Offer, (ii) each
\nSecurity until the date on which it has been effectively registered under the
\nSecurities Act and disposed of in accordance with the Shelf Registration
\nStatement or (iii) each Security until the date on which it is distributed to
\nthe public pursuant to Rule 144 under the Securities Act or is saleable pursuant
\nto Rule 144 without limitations. Notwithstanding anything to the contrary in
\nthis Section 3(a), the Company shall not be required to pay Additional Interest
\nto a Holder of Transfer Restricted Securities if such Holder failed to comply
\nwith its obligations to make the representations set forth in the third to last
\nparagraph of Section 1 or failed to provide the information required to be
\nprovided by it, if any, pursuant to Section 4(n).<\/p>\n<\/p>\n
(b) The Company shall notify the Trustee and the paying agent under the
\nIndenture immediately upon the happening of each and every Registration Default.
\nThe Company shall pay the Additional Interest due on the Transfer Restricted
\nSecurities by depositing with the paying agent (which may not be the Company for
\nthese purposes), in trust, for the benefit of the Holders thereof, prior to
\n11:00 a.m., New York City time, on the next applicable interest payment date
\nspecified by the Indenture and the Securities, sums sufficient to pay the
\nAdditional Interest then due. The Additional Interest due shall be payable on
\neach applicable interest payment date specified by the Indenture and the
\nSecurities to the record holder entitled to receive the interest payment to be
\nmade on such date. Each obligation to pay Additional Interest shall be deemed to
\naccrue from and include the date of the applicable Registration Default.<\/p>\n<\/p>\n<\/p>\n
8<\/p>\n
\n
(c) The parties hereto agree that the Additional Interest provided for in
\nthis Section 3 constitute a reasonable estimate of and are intended to
\nconstitute the sole damages that will be suffered by Holders of Transfer
\nRestricted Securities by reason of the failure of (i) the Shelf Registration
\nStatement or the Exchange Offer Registration Statement to be filed, (ii) the
\nShelf Registration Statement to remain effective or (iii) the Exchange Offer
\nRegistration Statement to be declared effective and the Registered Exchange
\nOffer to be consummated, in each case to the extent required by this Agreement.\n<\/p>\n<\/p>\n
4. Registration Procedures<\/u>. In connection with any Registration
\nStatement, the following provisions shall apply:<\/p>\n<\/p>\n
(a) The Company shall (i) furnish to each of the Initial Purchasers a copy of
\nthe Registration Statement and each amendment thereof and each supplement (other
\nthan reports required to be filed by it under the Exchange Act), if any, to the
\nprospectus included therein and shall use its reasonable best efforts to reflect
\nin each such document, when so filed with the Commission, such comments as any
\nInitial Purchaser or any Holder may reasonably propose; (ii) include the
\ninformation set forth (A) in Annex A hereto on the cover of such prospectus, (B)
\nin Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of
\nthe Exchange Offer” section of such prospectus, (C) in Annex C hereto in the
\n“Plan of Distribution” section of the prospectus forming a part of the Exchange
\nOffer Registration Statement and (D) in Annex D hereto in any Letter of
\nTransmittal delivered pursuant to the Registered Exchange Offer, in each case
\nsubject to any changes, additions, deletions or moving of such disclosure
\nrequired by the SEC; and (iii) if requested by an Initial Purchaser, include the
\ninformation required by Items 507 or 508 of Regulation S-K, as applicable, in
\nthe prospectus forming part of the Exchange Offer Registration Statement.<\/p>\n<\/p>\n
(b) The Company shall advise each of the Initial Purchasers, each Exchanging
\nDealer and the Holders (if applicable) and, if requested by any such person,
\nconfirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
\nshall be accompanied by an instruction to suspend the use of the prospectus
\nuntil the requisite changes have been made):<\/p>\n<\/p>\n
(i) when any Registration Statement and any amendment thereto has been filed
\nwith the Commission and when such Registration Statement or any post-effective
\namendment thereto has become effective;<\/p>\n<\/p>\n
(ii) of any request by the Commission for amendments or supplements to any
\nRegistration Statement or the prospectus included therein or for additional
\ninformation;<\/p>\n<\/p>\n
(iii) if known by the Company, of the issuance by the Commission of any stop
\norder suspending the effectiveness of any Registration Statement or the
\ninitiation of any proceedings for that purpose;<\/p>\n<\/p>\n<\/p>\n
9<\/p>\n
\n
(iv) of the receipt by the Company of any notification with respect to the
\nsuspension of the qualification of the Securities or the Exchange Securities for
\nsale in any jurisdiction or the initiation or threatening of any proceeding for
\nsuch purpose; and<\/p>\n<\/p>\n
(v) of the happening of any event that requires the making of any changes in
\nany Registration Statement or the prospectus included therein in order that the
\nstatements therein are not misleading and do not omit to state a material fact
\nrequired to be stated therein or necessary to make the statements therein not
\nmisleading.<\/p>\n<\/p>\n
(c) The Company shall make every reasonable effort to obtain the withdrawal
\nat the earliest possible time of any order suspending the effectiveness of any
\nRegistration Statement or qualifying the Securities therein for sale in any
\njurisdiction.<\/p>\n<\/p>\n
(d) The Company shall furnish to each Holder of Transfer Restricted
\nSecurities included within the coverage of any Shelf Registration Statement,
\nwithout charge, upon the written request of such Holder, at least one conformed
\ncopy of such Shelf Registration Statement and any post-effective amendment
\nthereto, including all material incorporated therein by reference, including
\nfinancial statements and schedules and, if any such Holder so requests in
\nwriting, all exhibits thereto (including those, if any, incorporated by
\nreference).<\/p>\n<\/p>\n
(e) The Company shall, during the Shelf Registration Period, promptly deliver
\nto each Holder of Transfer Restricted Securities included within the coverage of
\nany Shelf Registration Statement, without charge, as many copies of the
\nprospectus (including each preliminary prospectus) included in such Shelf
\nRegistration Statement and any amendment or supplement thereto as such Holder
\nmay reasonably request; and the Company consents to the use of such prospectus
\nor any amendment or supplement thereto by each of the selling Holders of
\nTransfer Restricted Securities in connection with the offer and sale of the
\nTransfer Restricted Securities covered by such prospectus or any amendment or
\nsupplement thereto.<\/p>\n<\/p>\n
(f) The Company shall furnish to each Exchanging Dealer who so requests in
\nwriting, without charge, at least one conformed copy of the Exchange Offer
\nRegistration Statement and any post-effective amendment thereto, including
\nfinancial statements and schedules and, if any Exchanging Dealer so requests in
\nwriting, all exhibits thereto (including those, if any, incorporated by
\nreference).<\/p>\n<\/p>\n
(g) The Company shall, during the Exchange Offer Registration Period or the
\nShelf Registration Period, as applicable, promptly deliver to each Initial
\nPurchaser, each Exchanging Dealer and such other persons that are required to
\ndeliver a prospectus following the Registered Exchange Offer, without charge, as
\nmany copies of the final prospectus included in the Exchange Offer Registration
\nStatement or the Shelf Registration Statement and any amendment or supplement
\nthereto as such Initial Purchaser, Exchanging Dealer or other persons may
\nreasonably request; and the Company consents to the use of such prospectus or
\nany amendment or supplement thereto by any such Initial Purchaser, Exchanging
\nDealer or other persons, as applicable, as aforesaid.<\/p>\n<\/p>\n<\/p>\n
10<\/p>\n
\n
(h) Prior to the effective date of any Registration Statement, the Company
\nshall use its reasonable best efforts to register or qualify, or cooperate with
\nthe Holders of Securities or Exchange Securities included therein and their
\nrespective counsel in connection with the registration or qualification of, such
\nSecurities or Exchange Securities for offer and sale under the securities or
\nblue sky laws of such jurisdictions as any such Holder reasonably requests in
\nwriting and do any and all other acts or things necessary or advisable to enable
\nthe offer and sale in such jurisdictions of the Securities or Exchange
\nSecurities covered by such Registration Statement, provided<\/u> that the
\nCompany shall not be required to qualify generally to do business in any
\njurisdiction where it is not then so qualified or to take any action which would
\nsubject it to general service of process or to taxation in any such jurisdiction
\nwhere it is not then so subject.<\/p>\n<\/p>\n
(i) The Company shall cooperate with the Holders of Securities or Exchange
\nSecurities to facilitate the timely preparation and delivery of certificates
\nrepresenting Securities or Exchange Securities to be sold pursuant to any
\nRegistration Statement free of any restrictive legends and in such denominations
\nand registered in such names as the Holders thereof may request in writing at
\nleast one business day prior to sales of Securities or Exchange Securities
\npursuant to such Registration Statement.<\/p>\n<\/p>\n
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs during
\nthe period for which the Company is required to maintain an effective
\nRegistration Statement, the Company shall promptly prepare and file with the
\nCommission a post-effective amendment to the Registration Statement or an
\namendment or a supplement to the related prospectus or file any other required
\ndocument so that, as thereafter delivered to purchasers of the Securities or
\nExchange Securities from a Holder, the prospectus will not include an untrue
\nstatement of a material fact or omit to state a material fact necessary in order
\nto make the statements therein, in the light of the circumstances under which
\nthey were made, not misleading. In such circumstances, other than with respect
\nto any Shelf Suspension Period, the period of effectiveness of the Exchange
\nOffer Registration Statement provided for in Section 1 and the Shelf
\nRegistration Statement provided for in Section 2(b) shall each be extended by
\nthe number of days from and including the date of the giving of a notice of
\nsuspension pursuant to Section 4(b) to and including the date when the Initial
\nPurchasers, the Holders of the Securities and any known Exchanging Dealer shall
\nhave received such amended or supplemented Prospectus pursuant to this Section.\n<\/p>\n<\/p>\n
(k) Not later than the effective date of the applicable Registration
\nStatement, the Company shall obtain a CUSIP number for the Securities and the
\nExchange Securities and provide the applicable trustee with printed certificates
\nfor the Securities or the Exchange Securities, as the case may be, in a form
\neligible for deposit with The Depository Trust Company.<\/p>\n<\/p>\n
(l) The Company shall comply with all applicable rules and regulations of the
\nCommission and make generally available to the Company153s security holders as
\nsoon as reasonably practicable after the effective date of the applicable
\nRegistration Statement an earning statement satisfying the provisions of Section
\n11(a) of the Securities Act, provided<\/u> that in no event shall such earning
\nstatement be delivered later than 45 days<\/p>\n<\/p>\n<\/p>\n
11<\/p>\n
\n
after the end of a 12-month period (or 90 days, if such period is a fiscal
\nyear) beginning with the first month of the Company153s first fiscal quarter
\ncommencing after the effective date of the applicable Registration Statement,
\nwhich statement shall cover such 12-month period.<\/p>\n<\/p>\n
(m) The Company shall cause the Indenture to be qualified under the Trust
\nIndenture Act as required by applicable law in a timely manner.<\/p>\n<\/p>\n
(n) The Company may require each Holder of Transfer Restricted Securities to
\nbe registered pursuant to any Shelf Registration Statement to furnish to the
\nCompany such information concerning the Holder and the distribution of such
\nTransfer Restricted Securities as the Company may from time to time reasonably
\nrequire for inclusion in such Shelf Registration Statement, and the Company may
\nexclude from such registration the Transfer Restricted Securities of any Holder
\nthat fails to furnish such information within a reasonable time after receiving
\nsuch request.<\/p>\n<\/p>\n
(o) In the case of a Shelf Registration Statement, each Holder of Transfer
\nRestricted Securities to be registered pursuant thereto agrees by acquisition of
\nsuch Transfer Restricted Securities that, upon receipt of any notice from the
\nCompany pursuant to Section 4(b)(ii) through (v), such Holder will discontinue
\ndisposition of such Transfer Restricted Securities until such Holder153s receipt
\nof copies of the supplemental or amended prospectus contemplated by Section 4(j)
\nor until advised in writing (the “Advice”) by the Company that the use of the
\napplicable prospectus may be resumed. If the Company shall give any notice under
\nSection 4(b)(ii) through (v) during the period that the Company is required to
\nmaintain an effective Registration Statement (the “Effectiveness Period”), other
\nthan with respect to any Shelf Suspension Period, such Effectiveness Period
\nshall be extended by the number of days during such period from and including
\nthe date of the giving of such notice to and including the date when each seller
\nof Transfer Restricted Securities covered by such Registration Statement shall
\nhave received (x) the copies of the supplemental or amended prospectus
\ncontemplated by Section 4(j) (if an amended or supplemental prospectus is
\nrequired) or (y) the Advice (if no amended or supplemental prospectus is
\nrequired).<\/p>\n<\/p>\n
(p) In the case of a Shelf Registration Statement, the Company shall enter
\ninto such customary agreements (including, if requested, an underwriting
\nagreement in customary form) and take all such other action, if any, as Holders
\nof a majority in aggregate principal amount of the Securities or Exchange
\nSecurities being sold or the managing underwriters, if any, shall reasonably
\nrequest in order to facilitate any disposition of Securities or Exchange
\nSecurities pursuant to such Shelf Registration Statement.<\/p>\n<\/p>\n
(q) In the case of any Shelf Registration Statement, the Company shall:<\/p>\n<\/p>\n
(i) make reasonably available for inspection by the Holders of,
\nrepresentatives and counsel to, a majority in aggregate principal amount of the
\nSecurities to be registered thereunder, any underwriter participating in any
\ndisposition pursuant to such Registration Statement and any attorney, accountant\n<\/p>\n<\/p>\n<\/p>\n
12<\/p>\n
\n
or other agent retained by such Holders or any such underwriter all relevant
\nfinancial and other records, pertinent corporate documents and properties of the
\nCompany;<\/p>\n<\/p>\n
(ii) cause the Company153s officers, directors and employees to supply all
\nrelevant information reasonably requested by the Holders or any such
\nunderwriter, attorney, accountant or agent in connection with any such Shelf
\nRegistration Statement as is customary for similar due diligence examinations;
\nprovided<\/u>, however<\/u>, that the foregoing inspection and information
\ngathering shall be coordinated on behalf of the Initial Purchasers by Citigroup
\nGlobal Markets Inc. in connection with any underwritten Shelf Registration
\nStatement to which it is a party, and on behalf of the Holders by one counsel
\ndesignated by the Holders of a majority of the Securities; provided<\/u>,
\nfurther<\/u>, that any information provided pursuant to Section 4(q)(i) and
\n(ii) that is designated in writing by the Company, in good faith, as
\nconfidential at the time of delivery of such information shall be kept
\nconfidential by the Holders or any such underwriter, attorney, accountant or
\nagent, and shall be used only in connection with such Shelf Registration and the
\ntransactions contemplated thereby unless such disclosure is made in connection
\nwith a court proceeding or required by law, or such information becomes
\navailable to the public generally or through a third party without an
\naccompanying obligation of confidentiality;<\/p>\n<\/p>\n
(iii) make such representations and warranties to the underwriters, if any,
\nin form, substance and scope as are customarily made by issuers to underwriters
\nin primary underwritten offerings and covering matters including, but not
\nlimited to, those set forth in the Purchase Agreement;<\/p>\n<\/p>\n
(iv) obtain opinions of its counsel and updates thereof (which counsel and
\nopinions (in form, scope and substance) shall be reasonably satisfactory to the
\nunderwriters, if any) addressed to each selling Holder and the underwriters, if
\nany, covering such matters as are customarily covered in opinions requested in
\nunderwritten offerings and such other matters as may be reasonably requested by
\nsuch Holders and underwriters;<\/p>\n<\/p>\n
(v) if requested in writing by Holders of a majority in aggregate principal
\namount of the Securities to be registered thereunder or by any underwriter
\nparticipating in any disposition pursuant to such Shelf Registration Statement,
\nto use its reasonable best efforts to obtain “cold comfort” letters and updates
\nthereof from the independent certified public accountants of the Company,
\naddressed to each selling Holder of Securities registered thereunder and the
\nunderwriters, if any, in customary form and covering matters of the type
\ncustomarily covered in “cold comfort” letters in connection with primary
\nunderwritten offerings; and<\/p>\n<\/p>\n
(vi) deliver such documents and certificates as may be reasonably requested
\nby the Holders of a majority in aggregate principal amount of the Securities and
\nthe Exchange Securities being sold and the underwriters, if any,<\/p>\n<\/p>\n<\/p>\n
13<\/p>\n
\n
and with any customary conditions contained in the underwriting agreement or
\nother agreement entered into by the Company.<\/p>\n<\/p>\n
The actions set forth in clauses (iii), (iv) and (v) of this subsection shall
\nbe performed at (A) the effectiveness of such Shelf Registration Statement and,
\nif applicable, each post-effective amendment thereto or, in the case of the
\ndesignation of an existing Automatic Shelf Registration Statement for the offer
\nand sale of Transfer Restricted Securities, upon the filing of a prospectus
\nsupplement relating to such offer and sale of Transfer Restricted Securities or
\nany post-effective amendment thereto; and (B) each closing under any
\nunderwriting or similar agreement as and to the extent required thereunder.<\/p>\n<\/p>\n
(r) If a Registered Exchange Offer is to be consummated, upon delivery of the
\nSecurities by Holders to the Company (or to such other person as directed by the
\nCompany) in exchange for the Exchange Securities, the Company shall mark, or
\ncause to be marked, on the Securities so exchanged that such Securities are
\nbeing canceled in exchange for the Exchange Securities. In no event shall the
\nSecurities be marked as paid or otherwise satisfied.<\/p>\n<\/p>\n
(s) The Company will use its reasonable best efforts to cause the Securities
\ncovered by a Registration Statement to be rated with at least one nationally
\nrecognized statistical rating agency, if so requested by Holders of a majority
\nin aggregate principal amount of the Securities and the Exchange Securities
\nbeing sold with respect to the related Registration Statement or by any
\nunderwriters.<\/p>\n<\/p>\n
(t) In the event that any Broker-Dealer shall underwrite any Securities or
\nparticipate as a member of an underwriting syndicate or selling group or “assist
\nin the distribution” (within the meaning of the Rules of Fair Practice and the
\nBy-Laws of the Financial Industry Regulatory Authority, Inc.) thereof, whether
\nas a Holder of such Securities or as an underwriter, a placement or sales agent
\nor a broker or dealer in respect thereof, or otherwise, the Company shall assist
\nsuch Broker-Dealer in complying with the requirements of such Rules and By-Laws,
\nincluding, without limitation, by:<\/p>\n<\/p>\n
(i) if such Rules or By-Laws shall so require, engaging a “qualified
\nindependent underwriter” (as defined in such Rules) to participate in the
\npreparation of the Registration Statement, to exercise usual standards of due
\ndiligence with respect thereto and, if any portion of the offering contemplated
\nby such Registration Statement is an underwritten offering or is made through a
\nplacement or sales agent, to recommend the yield of such Securities;<\/p>\n<\/p>\n
(ii) indemnifying any such qualified independent underwriter to the extent of
\nthe indemnification of underwriters provided in Section 6 hereof; and<\/p>\n<\/p>\n
(iii) providing such information to such Broker-Dealer as may be required in
\norder for such Broker-Dealer to comply with the requirements of such Rules.<\/p>\n<\/p>\n<\/p>\n
14<\/p>\n
\n
5. Registration Expenses<\/u>. The Company shall bear all expenses incurred
\nin connection with the performance of their obligations under Sections 1, 2, 3
\nand 4 and, in the case of a Shelf Registration Statement, the Company shall
\nreimburse the Holders for the reasonable fees and disbursements of one firm of
\nattorneys (in addition to any local counsel) chosen by the Holders of a majority
\nin aggregate principal amount of the Securities and the Exchange Securities to
\nbe sold pursuant to each Registration Statement acting for the Holders and the
\nInitial Purchasers in connection therewith and, in the case of any Exchange
\nOffer Registration Statement, will reimburse the Initial Purchasers for the
\nreasonable fees and disbursements of counsel acting in connection therewith.\n<\/p>\n<\/p>\n
6. Indemnification<\/u>. (a) In the event of a Shelf Registration Statement
\nor in connection with any prospectus delivery pursuant to an Exchange Offer
\nRegistration Statement by an Exchanging Dealer, the Company shall indemnify and
\nhold harmless each Holder (including, without limitation, each Initial Purchaser
\nand any such Exchanging Dealer), their affiliates, their respective officers,
\ndirectors, employees, representatives and agents, and each person, if any, who
\ncontrols such Holder within the meaning of the Securities Act or the Exchange
\nAct (collectively referred to for purposes of this Section 6 and Section 7 as a
\nHolder), from and against any loss, claim, damage or liability, joint or
\nseveral, or any action in respect thereof (including, without limitation, any
\nloss, claim, damage, liability or action relating to purchases and sales of
\nSecurities or Exchange Securities), to which that Holder may become subject,
\nwhether commenced or threatened, under the Securities Act, the Exchange Act, any
\nother federal or state statutory law or regulation, at common law or otherwise,
\ninsofar as such loss, claim, damage, liability or action arises out of, or is
\nbased upon, (i) any untrue statement or alleged untrue statement of a material
\nfact contained in any such Registration Statement or any prospectus forming part
\nthereof or in any amendment or supplement thereto or any “issuer free writing
\nprospectus” within the meaning of the Securities Act approved by the Company or
\n(ii) the omission or alleged omission to state therein a material fact required
\nto be stated therein or necessary in order to make the statements therein, in
\nthe light of the circumstances under which they were made, not misleading, and
\nshall reimburse each indemnified party promptly upon demand for any legal or
\nother expenses reasonably incurred by that indemnified party in connection with
\ninvestigating or defending or preparing to defend against or appearing as a
\nthird party witness in connection with any such loss, claim, damage, liability
\nor action as such expenses are incurred; provided<\/u>, however<\/u>, that
\nthe Company shall not be liable in any such case to the extent that any such
\nloss, claim, damage, liability or action arises out of, or is based upon, an
\nuntrue statement or alleged untrue statement in or omission or alleged omission
\nfrom any of such documents in reliance upon and in conformity with any Holders153
\nInformation.<\/p>\n<\/p>\n
(b) In the event of a Shelf Registration Statement, each Holder severally and
\nnot jointly shall indemnify and hold harmless the Company, its affiliates, its
\nrespective officers, directors, employees, representatives and agents, and each
\nperson, if any, who controls the Company, within the meaning of the Securities
\nAct or the Exchange Act (collectively referred to for purposes of this Section
\n6(b) and Section 7 as the Company), from and against any loss, claim, damage or
\nliability, joint or several, or any action in respect thereof, to which the
\nCompany may become subject, whether commenced or threatened, under the
\nSecurities Act, the Exchange Act, any other federal<\/p>\n<\/p>\n<\/p>\n
15<\/p>\n
\n
or state statutory law or regulation, at common law or otherwise, insofar as
\nsuch loss, claim, damage, liability or action arises out of, or is based upon,
\n(i) any untrue statement or alleged untrue statement of a material fact
\ncontained in any such Registration Statement or any prospectus forming a part
\nthereof or in any amendment or supplement thereto or any “issuer free writing
\nprospectus” within the meaning of the Securities Act or (ii) the omission or
\nalleged omission to state therein a material fact required to be stated therein
\nor necessary in order to make the statements therein, in the light of the
\ncircumstances under which they were made, not misleading, but in each case only
\nto the extent that the untrue statement or alleged untrue statement or omission
\nor alleged omission was made in reliance upon and in conformity with any
\nHolders153 Information furnished to the Company by such Holder, and shall
\nreimburse the Company for any legal or other expenses reasonably incurred by the
\nCompany, in connection with investigating or defending or preparing to defend
\nagainst or appearing as a third party witness in connection with any such loss,
\nclaim, damage, liability or action as such expenses are incurred;
\nprovided<\/u>, however<\/u>, that no such Holder shall be liable for any
\nindemnity claims hereunder in excess of the amount of net proceeds received by
\nsuch Holder from the sale of Securities or Exchange Securities pursuant to such
\nShelf Registration Statement.<\/p>\n<\/p>\n
(c) Promptly after receipt by an indemnified party under this Section 6 of
\nnotice of any claim or the commencement of any action, the indemnified party
\nshall, if a claim in respect thereof is to be made against the indemnifying
\nparty pursuant to Section 6(a) or 6(b), notify the indemnifying party in writing
\nof the claim or the commencement of that action; provided<\/u>,
\nhowever<\/u>, that the failure to notify the indemnifying party shall not
\nrelieve it from any liability which it may have under this Section 6 except to
\nthe extent that it has been materially prejudiced (through the forfeiture of
\nsubstantive rights or defenses) by such failure; and provided<\/u>
\nfurther<\/u>, however<\/u>, that the failure to notify the indemnifying
\nparty shall not relieve it from any liability which it may have to an
\nindemnified party otherwise than under this Section 6. If any such claim or
\naction shall be brought against an indemnified party, and it shall notify the
\nindemnifying party thereof, the indemnifying party shall be entitled to
\nparticipate therein and, to the extent that it wishes, jointly with any other
\nsimilarly notified indemnifying party, to assume the defense thereof with
\ncounsel reasonably satisfactory to the indemnified party. After notice from the
\nindemnifying party to the indemnified party of its election to assume the
\ndefense of such claim or action, the indemnifying party shall not be liable to
\nthe indemnified party under this Section 6 for any legal or other expenses
\nsubsequently incurred by the indemnified party in connection with the defense
\nthereof other than the reasonable costs of investigation; provided<\/u>,
\nhowever<\/u>, that an indemnified party shall have the right to employ its own
\ncounsel in any such action, but the fees, expenses and other charges of such
\ncounsel for the indemnified party will be at the expense of such indemnified
\nparty unless (1) the employment of counsel by the indemnified party has been
\nauthorized in writing by the indemnifying party, (2) the indemnified party has
\nreasonably concluded that there may be legal defenses available to it or other
\nindemnified parties that are different from or in addition to those available to
\nthe indemnifying party, (3) a conflict or potential conflict exists (based upon
\nadvice of counsel to the indemnified party) between the indemnified party and
\nthe indemnifying party (in which case the indemnifying party will not have the
\nright to direct the defense of such action on behalf<\/p>\n<\/p>\n<\/p>\n
16<\/p>\n
\n
of the indemnified party) or (4) the indemnifying party has not in fact
\nemployed counsel reasonably satisfactory to the indemnified party to assume the
\ndefense of such action within a reasonable time after receiving notice of the
\ncommencement of the action, in each of which cases the reasonable fees,
\ndisbursements and other charges of counsel will be at the expense of the
\nindemnifying party or parties. It is understood that the indemnifying party or
\nparties shall not, in connection with any proceeding or related proceedings in
\nthe same jurisdiction, be liable for the reasonable fees, disbursements and
\nother charges of more than one separate firm of attorneys (in addition to any
\nlocal counsel) at any one time for all such indemnified party or parties. Each
\nindemnified party, as a condition of the indemnity agreements contained in
\nSections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
\nindemnifying party in the defense of any such action or claim. No indemnifying
\nparty shall be liable for any settlement of any such action effected without its
\nwritten consent (which consent shall not be unreasonably withheld), but if
\nsettled with its written consent or if there be a final judgment for the
\nplaintiff in any such action, the indemnifying party agrees to indemnify and
\nhold harmless any indemnified party from and against any loss or liability by
\nreason of such settlement or judgment. No indemnifying party shall, without the
\nprior written consent of the indemnified party (which consent shall not be
\nunreasonably withheld), effect any settlement of any pending or threatened
\nproceeding in respect of which any indemnified party is or could have been a
\nparty and indemnity could have been sought hereunder by such indemnified party,
\nunless such settlement includes an unconditional release of such indemnified
\nparty from all liability or claims that were raised or could have been raised by
\nsuch plaintiff in such proceeding.<\/p>\n<\/p>\n
7. Contribution<\/u>. If the indemnification provided for in Section 6 is
\nunavailable or insufficient to hold harmless an indemnified party under Section
\n6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
\nindemnified party, contribute to the amount paid or payable by such indemnified
\nparty as a result of such loss, claim, damage or liability, or action in respect
\nthereof, (i) in such proportion as shall be appropriate to reflect the relative
\nbenefits received by the indemnified party, on the one hand, and the
\nindemnifying party, on the other hand, from the Initial Placement and the
\nRegistration Statement which resulted in such loss, claim, damage or liability,
\nor action in respect thereof, or (ii) if the allocation provided by clause (i)
\nabove is not permitted by applicable law, in such proportion as is appropriate
\nto reflect not only the relative benefits referred to in clause (i) above but
\nalso the relative fault of the Company on the one hand and such Holder, on the
\nother, with respect to the statements or omissions that resulted in such loss,
\nclaim, damage or liability, or action in respect thereof, as well as any other
\nrelevant equitable considerations. Benefits received by the Company shall be
\ndeemed to be equal to the total net proceeds from the Initial Placement (before
\ndeducting expenses) received by the Company, and benefits received by the
\nInitial Purchasers shall be deemed to be equal to the total purchase discounts
\nand commissions in each case set forth on the cover of the Final Memorandum.
\nBenefits received by any other Holders shall be deemed to be equal to the value
\nof receiving Securities or Exchange Securities, as applicable, registered under
\nthe Securities Act. The relative fault shall be determined by reference to,
\namong other things, whether the untrue or alleged untrue statement of a material
\nfact or the omission or alleged omission to state a material fact relates to the
\nCompany or information supplied by the Company on the<\/p>\n<\/p>\n<\/p>\n
17<\/p>\n
\n
one hand or to any Holder or information supplied by such Holder on the
\nother, the intent of the parties and their relative knowledge, access to
\ninformation and opportunity to correct or prevent such untrue statement or
\nomission. The parties hereto agree that it would not be just and equitable if
\ncontributions pursuant to this Section 7 were to be determined by pro rata
\nallocation or by any other method of allocation that does not take into account
\nthe equitable considerations referred to herein. The amount paid or payable by
\nan indemnified party as a result of the loss, claim, damage or liability, or
\naction in respect thereof, referred to above in this Section 7 shall be deemed
\nto include, for purposes of this Section 7, any legal or other expenses
\nreasonably incurred by such indemnified party in connection with investigating
\nor defending or preparing to defend any such action or claim. Notwithstanding
\nthe provisions of this Section 7, an indemnifying party that is a Holder of
\nSecurities or Exchange Securities shall not be required to contribute any amount
\nin excess of the amount by which (A) with respect to any Holder, the total price
\nat which the Securities or Exchange Securities sold by such indemnifying party
\nto any purchaser, (B) with respect to a Purchaser, the total consideration
\nreceived by such Purchaser pursuant to the Purchase Agreement, as the case may
\nbe, exceeds the amount of any damages which such indemnifying party has
\notherwise paid or become liable to pay by reason of any untrue or alleged untrue
\nstatement or omission or alleged omission. No person guilty of fraudulent
\nmisrepresentation (within the meaning of Section 11(f) of the Securities Act)
\nshall be entitled to contribution from any person who was not guilty of such
\nfraudulent misrepresentation.<\/p>\n<\/p>\n
8. Rules 144 and 144A<\/u>. So long as Transfer Restricted Securities
\nremain outstanding, the Company shall use its reasonable best efforts to file
\nthe reports required to be filed by it under the Securities Act and the Exchange
\nAct in a timely manner and, if at any time the Company is not required to file
\nsuch reports, it will, upon the written request of any Holder of Transfer
\nRestricted Securities, make publicly available other information so long as
\nnecessary to permit sales of such Holder153s securities pursuant to Rules 144 and
\n144A. So long as Transfer Restricted Securities remain outstanding, upon the
\nwritten request of any Holder of Transfer Restricted Securities, the Company
\nshall deliver to such Holder a written statement as to whether it has complied
\nwith such requirements. Notwithstanding the foregoing, nothing in this Section 8
\nshall be deemed to require the Company to register any of its securities
\npursuant to the Exchange Act.<\/p>\n<\/p>\n
9. Underwritten Registrations<\/u>. If any of the Transfer Restricted
\nSecurities covered by any Shelf Registration Statement are to be sold in an
\nunderwritten offering, the investment banker or investment bankers and manager
\nor managers that will administer the offering will be selected by the Holders of
\na majority in aggregate principal amount of such Transfer Restricted Securities
\nincluded in such offering, subject to the consent of the Company (which shall
\nnot be unreasonably withheld or delayed), and such Holders shall be responsible
\nfor all underwriting commissions and discounts in connection therewith.<\/p>\n<\/p>\n
No person may participate in any underwritten registration hereunder unless
\nsuch person (i) agrees to sell such person153s Transfer Restricted Securities on
\nthe basis reasonably provided in any underwriting arrangements approved by the
\npersons<\/p>\n<\/p>\n<\/p>\n
18<\/p>\n
\n
entitled hereunder to approve such arrangements and (ii) completes and
\nexecutes all questionnaires, powers of attorney, indemnities, underwriting
\nagreements and other documents reasonably required under the terms of such
\nunderwriting arrangements.<\/p>\n<\/p>\n
10. Miscellaneous<\/u>. (a) Amendments and Waivers<\/u>. The provisions
\nof this Agreement may not be amended, modified or supplemented, and waivers or
\nconsents to departures from the provisions hereof may not be given, unless the
\nCompany has obtained the written consent of Holders of a majority in aggregate
\nprincipal amount of the Securities and the Exchange Securities; provided<\/u>
\nthat, with respect to any matter that directly or indirectly affects the rights
\nof any Initial Purchaser hereunder, the Company shall obtain the written consent
\nof each such Initial Purchaser against which such amendment, qualification,
\nsupplement, waiver or consent is to be effective. Notwithstanding the foregoing,
\na waiver or consent to depart from the provisions hereof with respect to a
\nmatter that relates exclusively to the rights of Holders whose Securities or
\nExchange Securities, as the case may be, are being sold pursuant to a
\nRegistration Statement and that does not directly or indirectly affect the
\nrights of other Holders may be given by Holders of a majority in aggregate
\nprincipal amount of the Securities and the Exchange Securities being sold by
\nsuch Holders pursuant to such Registration Statement.<\/p>\n<\/p>\n
(b) Notices<\/u>. All notices and other communications provided for or
\npermitted hereunder shall be made in writing by hand-delivery, first-class mail,
\ntelecopier or any courier guaranteeing next-day delivery:<\/p>\n<\/p>\n
(1) if to a Holder, at the most current address given by such Holder to the
\nCompany in accordance with the provisions of this Section 10(b), which address
\ninitially is, with respect to each Holder, the address of such Holder maintained
\nby the Registrar under the Indenture;<\/p>\n<\/p>\n
(2) if to you, initially at the respective addresses set forth in the
\nPurchase Agreement; and<\/p>\n<\/p>\n
(3) if to the Company, initially at the address of the Company set forth in
\nthe Purchase Agreement.<\/p>\n<\/p>\n
All such notices and communications shall be deemed to have been duly given:
\nwhen delivered by hand, if personally delivered; when delivered by e-mail, if
\nreceipt is acknowledged in a reply e-mail by the recipient; one business day
\nafter being delivered to a next-day air courier; five business days after being
\ndeposited in the mail; and when receipt is acknowledged by the recipient153s
\ntelecopier machine, if sent by telecopier.<\/p>\n<\/p>\n
(c) Successors And Assigns<\/u>. This Agreement shall inure to the benefit
\nof and be binding upon the successors and assigns of each of the parties,
\nincluding, without the need for an express assignment or any consent by the
\nCompany thereto, subsequent Holders of Securities and the Exchange Securities.
\nThe Company hereby agrees to extend the benefits of this Agreement to any Holder
\nof Securities and the Exchange<\/p>\n<\/p>\n<\/p>\n
19<\/p>\n
\n
Securities, and any such Holder may specifically enforce the provisions of
\nthis Agreement as if an original party hereto.<\/p>\n<\/p>\n
(d) Counterparts<\/u>. This Agreement may be executed in any number of
\ncounterparts (which may be delivered in original form or by telecopier) and by
\nthe parties hereto in separate counterparts, each of which when so executed
\nshall be deemed to be an original and all of which taken together shall
\nconstitute one and the same agreement.<\/p>\n<\/p>\n
(e) Definition of Terms<\/u>. For purposes of this Agreement, (a) the term
\n“business day” means any day on which the New York Stock Exchange, Inc. is open
\nfor trading, (b) the term “subsidiary” has the meaning set forth in Rule 405
\nunder the Securities Act, (c) except where otherwise expressly provided, the
\nterm “affiliate” has the meaning set forth in Rule 405 under the Securities Act,
\n(d) the term “Broker-Dealer” shall mean any broker or dealer registered as such
\nunder the Exchange Act, (e) the term “Exchange Act” shall mean the Securities
\nExchange Act of 1934, as amended, and the rules and regulations of the
\nCommission promulgated thereunder, (f) the term “Securities Act” shall mean the
\nSecurities Act of 1933, as amended, and the rules and regulations of the
\nCommission promulgated thereunder, (g) the term “Exchange Offer Registration
\nPeriod” shall mean the 210 day period following the consummation of the
\nRegistered Exchange Offer, exclusive of any period during which any stop order
\nshall be in effect suspending the effectiveness of the Exchange Offer
\nRegistration Statement, and (h) the term “Shelf Registration” shall mean a
\nregistration effected pursuant to Section 2 hereof.<\/p>\n<\/p>\n
(f) Headings<\/u>. The headings in this Agreement are for convenience of
\nreference only and shall not limit or otherwise affect the meaning hereof.<\/p>\n<\/p>\n
(g) Governing Law<\/u>. This Agreement shall be governed by and construed
\nin accordance with the laws of the State of New York applicable to contracts
\nmade and to be performed within the State of New York.<\/p>\n<\/p>\n
(h) No Inconsistent Agreements<\/u>. The Company has not entered into, or
\nshall not, on or after the date of this Agreement, enter into any agreement that
\nis inconsistent with the rights granted to the Holders in this Agreement or
\notherwise conflicts with the provisions hereof.<\/p>\n<\/p>\n
(i) Severability<\/u>. The remedies provided herein are cumulative and not
\nexclusive of any remedies provided by law. If any term, provision, covenant or
\nrestriction of this Agreement is held by a court of competent jurisdiction to be
\ninvalid, illegal, void or unenforceable, the remainder of the terms, provisions,
\ncovenants and restrictions set forth herein shall remain in full force and
\neffect and shall in no way be affected, impaired or invalidated, and the parties
\nhereto shall use their reasonable best efforts to find and employ an alternative
\nmeans to achieve the same or substantially the same result as that contemplated
\nby such term, provision, covenant or restriction. It is hereby stipulated and
\ndeclared to be the intention of the parties that they would have executed the
\nremaining terms, provisions, covenants and restrictions without including any of
\nsuch that may be hereafter declared invalid, illegal, void or unenforceable.\n<\/p>\n<\/p>\n<\/p>\n
20<\/p>\n
\n
(j) Securities Held by the Company, etc.<\/u> Whenever the consent or
\napproval of Holders of a specified percentage of principal amount of Securities
\nor Exchange Securities is required hereunder, Securities or Exchange Securities,
\nas applicable, held by the Company or its Affiliates shall be disregarded and
\ndeemed not to be outstanding in determining whether such consent or approval was
\ngiven by the Holders of such required percentage.<\/p>\n<\/p>\n<\/p>\n
21<\/p>\n
\n
Please confirm that the foregoing correctly sets forth the agreement among
\nthe Company, the Subsidiary Guarantors and the several Initial Purchasers.<\/p>\n<\/p>\n
| <\/td>\n | \n Very truly yours,<\/p>\n<\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | <\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | \n RITE AID CORPORATION,<\/p>\n<\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | \n By<\/p>\n<\/td>\n | \n \/s\/ Marc A. Strassler<\/p>\n<\/td>\n<\/tr>\n | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Marc A. Strassler<\/p>\n<\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Executive Vice President, General Counsel and Secretary<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 22<\/p>\n \n
|