exv10w3






EXHIBIT 10.3




EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT



by and among


The Great Atlantic & Pacific Tea Company, Inc.,

the Guarantors Named Herein


and


Banc of America Securities LLC


Dated as of August 4, 2009




 









 








REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made and entered into as of August 4,
2009, by and among The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the
“Company”), the guarantors listed on Schedule A hereto (collectively, the “Guarantors”), and Banc
of America Securities LLC (the “Initial Purchaser”), who
has agreed to purchase the Company’s
113/8%
Senior Secured Notes due 2015 (the “Notes”) fully and unconditionally guaranteed by the Guarantors
(the “Guarantees”) pursuant to the Purchase Agreement (as defined below). The Notes and the
Guarantees attached thereto are herein collectively referred to as the “Securities.”



     This Agreement is made pursuant to the Purchase Agreement, dated July 30, 2009 (the “Purchase
Agreement”), by and among the Company, the Guarantors and the Initial Purchaser (i) for the benefit
of the Initial Purchaser and (ii) for the benefit of the holders from time to time of Transfer
Restricted Securities, including the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Securities, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchaser set forth in Section 5(g) of the Purchase Agreement.



     The parties hereby agree as follows:


SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have the
following meanings:




     Additional Interest: As defined in Section 5 hereof.



     Advice: As defined in Section 6(c) hereof.



     Agreement: As defined in the preamble hereto.



     Broker-Dealer: Any broker or dealer registered under the Exchange Act.



     Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in the City of New York, New York are authorized or
obligated to be closed.



     Closing Date: The date of this Agreement.



     Commission: The U.S. Securities and Exchange Commission.



     Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Company to the registrar under the Indenture
of Exchange Securities in the same aggregate principal



 









 




amount as the aggregate principal amount of the Securities that were tendered by Holders
thereof pursuant to the Exchange Offer.




     Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.



     Exchange Date: As defined in Section 3(a) hereto.



     Exchange Offer: The registration by the Company and the Guarantors under the Securities Act
of the Exchange Securities pursuant to a Registration Statement pursuant to which the Company
offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such Holders for Exchange Securities in
an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.



     Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.



     Exchange Securities: The 113/8% Senior Secured Notes due 2015, of the same series under the
Indenture as the Securities to be issued to Holders in exchange for Transfer Restricted Securities
pursuant to this Agreement.



     FINRA: Financial Industry Regulatory Authority, Inc.



     Holders: As defined in Section 2(b) hereof.



     Indemnified Holder: As defined in Section 8(a) hereof.



     Indenture: The Indenture, dated as of August 4, 2009, by and among the Company, the
Guarantors and Wilmington Trust Company, as trustee (the “Trustee”), pursuant to which the
Securities and the Exchange Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.



     Initial Placement: The issuance and sale by the Company of the Securities to the Initial
Purchaser pursuant to the Purchase Agreement.



     Initial Purchaser: As defined in the preamble hereto.



     Interest Payment Date: As defined in the Indenture and the Securities.



     Person: An individual, partnership, corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political subdivision thereof or other
similar entity.



     Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.



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     Registration Default: As defined in Section 5 hereof.



     Registration Statement: Any registration statement of the Company and the Guarantors relating
to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, which is
filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.



     Securities: As defined in the preamble hereto.



     Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.



     Shelf Filing Deadline: As defined in Section 4(a) hereof.



     Shelf Registration Statement: As defined in Section 4(a) hereof.



     Transfer Restricted Securities: Each Security, until the earliest to occur of (a) the date on
which such Security is exchanged in the Exchange Offer for an Exchange Security entitled to be
resold to the public by the holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf Registration
Statement and (c) the date on which such Security ceases to be outstanding.



     Trust Indenture Act: The Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated thereunder.



     Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.



SECTION 2. Securities Subject to this Agreement.





     (a) Transfer Restricted Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.




     (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “Holder”) whenever such Person owns Transfer
Restricted Securities.



SECTION 3. Registered Exchange Offer.





     (a) Unless the Exchange Offer shall not be permissible under applicable law or
Commission policy (after the procedures set forth in Section 6(a) hereof have been complied
with), or there are less than $26,000,000 of Transfer Restricted Securities outstanding,
each of the Company and the Guarantors shall use its commercially reasonable efforts to (i)
cause to be filed with the Commission a Registration Statement



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under the Securities Act relating to the Exchange Securities and the Exchange Offer,
(ii) cause such Registration Statement to become effective, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430B
under the Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Securities to be made under the state
securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon the effectiveness of such Registration Statement, commence
the Exchange Offer. Each of the Company and the Guarantors shall use its commercially
reasonable efforts to Consummate the Exchange Offer not later than 730 days following the
Closing Date (or if such 730th day is not a Business Day, the next succeeding Business Day)
(the “Exchange Date”). The Exchange Offer, if required pursuant to this Section 3(a), shall
be on the appropriate form permitting registration of the Exchange Securities to be offered
in exchange for the Transfer Restricted Securities and to permit resales of Transfer
Restricted Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.




     (b) If an Exchange Offer Registration Statement is required to be filed and declared
effective pursuant to Section 3(a) above, the Company and the Guarantors shall cause the
Exchange Offer Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 Business Days after the date
notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No securities other
than the Exchange Securities shall be included in the Exchange Offer Registration Statement.




     (c) The Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that any
Broker-Dealer who holds Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company), may exchange the
Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any resales of
the Exchange Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of
the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to such resales
by Broker-Dealers that the Commission may require in order to permit such resales pursuant
thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose
the amount of Securities held by any such Broker-Dealer except to the extent required by the
Commission.



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     Each of the Company and the Guarantors shall use its commercially reasonable efforts to
keep the Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) hereof to the extent necessary to
ensure that it is available for resales of Securities acquired by Broker-Dealers for their
own accounts as a result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to time, for a
period ending on the earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is
no longer required to deliver a prospectus in connection with market-making or other trading
activities.




     The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided
in the foregoing sentence) period in order to facilitate such resales.



SECTION 4. Shelf Registration.





     (a) Shelf Registration. If (i) the Company and the Guarantors are not required to file
the Exchange Offer Registration Statement or to consummate the Exchange Offer solely because
the Exchange Offer is not permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) hereof have been complied with), (ii) for any reason
the Exchange Offer is not Consummated by the Exchange Date, or (iii) prior to the Exchange
Date: (A) with respect to any Holder of Transfer Restricted Securities such Holder notifies
the Company that (i) such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, (ii) such Holder may not resell the Exchange Securities
acquired by it in the Exchange Offer to the public without delivering a prospectus (other
than due solely to the status of such Holder as an affiliate of the Company within the
meaning of the Securities Act) and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such Holder, or
(iii) such Holder is a Broker-Dealer and holds Transfer Restricted Securities acquired
directly from the Company or one of its affiliates or (B) the Initial Purchaser notifies the
Company it will not receive freely tradable Exchange Securities in exchange for Transfer
Restricted Securities constituting any portion of the Initial Purchaser’s unsold allotment,
then the Company and the Guarantors shall:




     (x) cause to be filed a shelf registration statement pursuant to Rule 415 under
the Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf Registration Statement”) on or prior to the
later to occur of (i) the 90th day after the date such obligation arises (or if such
90th day is not a Business Day, the next succeeding Business Day) and (ii) the 730th
day after the Closing Date (or if such 730th day is not a Business Day, the next
succeeding Business Day) (such date being the “Shelf Filing Deadline”), which Shelf
Registration Statement shall provide for resales of all



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Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and




     (y) use their commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 90th day after
the Shelf Filing Deadline (or if such 90th day is not a Business Day, the next
succeeding Business Day).




     Each of the Company and the Guarantors shall use its commercially reasonable efforts to
keep such Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Transfer Restricted Securities by the Holders of such
Securities entitled to the benefit of this Section 4(a), and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at least two
years following the effective date of such Shelf Registration Statement (or shorter period
that will terminate when all the Securities covered by such Shelf Registration Statement
have been sold pursuant to such Shelf Registration Statement).




     (b) Provision by Holders of Certain Information in Connection with the Shelf
Registration Statement. No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing, within 20
Business Days after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration Statement or Prospectus
or preliminary Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.



SECTION 5. Additional Interest.




     If either (i) the Exchange Offer has not been Consummated by the Exchange Date, (ii) any Shelf
Registration Statement, if required hereby, has not been declared effective by the Commission in
accordance with the requirements of Section 4(a) or (iii) any Registration Statement required by
this Agreement has been declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a post-effective amendment
to such Registration Statement that cures such failure and that is itself immediately declared or
automatically becomes effective (each such event referred to in clauses (i) through (iii), a
“Registration Default”), the Company hereby agrees that the interest rate borne by the Transfer
Restricted Securities shall be increased by 0.25% per annum during the 90-day period immediately
following the occurrence of any Registration Default and shall increase by 0.25% per annum at the
end of each subsequent 90-day period (such increase, “Additional Interest”), but in no event shall
such increase exceed 1.00% per annum. Following the earliest of (x) the cure of all Registration
Defaults relating to the particular Transfer Restricted Securities and (y) the date on which such
Transfer Restricted Securities cease to be Transfer Restricted



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Securities, the interest rate borne by the relevant Transfer Restricted Securities will be reduced
to the original interest rate borne by such Transfer Restricted Securities; provided, however,
that, if after any such reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.




     Notwithstanding the foregoing, (i) the amount of Additional Interest payable shall not
increase because more than one Registration Default has occurred and is pending and (ii) a Holder
of Transfer Restricted Securities that is not entitled to the benefits of the Shelf Registration
Statement (because, e.g., such Holder has not elected to include information or has not timely
delivered such information to the Company pursuant to Section 4(b) hereof) shall not be entitled to
Additional Interest with respect to a Registration Default that pertains to the Shelf Registration
Statement.



     All obligations of the Company and the Guarantors set forth in the first paragraph of this
Section 5 that are outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.



SECTION 6. Registration Procedures.





     (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, if
required pursuant to Section 3(a) hereof, the Company and the Guarantors shall comply with
all of the provisions of Section 6(c) hereof, shall use their commercially reasonable
efforts to effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof, and shall
comply with all of the following provisions:




     (i) If in the reasonable opinion of counsel to the Company, there is a question
as to whether the Exchange Offer is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a favorable decision from the Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer for such Securities.
The Company and the Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. The
Company and the Guarantors hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a favorable resolution by the Commission staff of such submission.




     (ii) As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the Consummation thereof, a
written representation to the Company (which may be contained in the letter of



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transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company or any Guarantor, (B) it is
not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Company’s
preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees
that any Broker-Dealer and any such Holder using the Exchange Offer to participate
in a distribution of the securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (which may include any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Securities obtained by such Holder in
exchange for the Securities acquired by such Holder directly from the Company.




     (b) Shelf Registration Statement. If required pursuant to Section 4, in connection
with the Shelf Registration Statement, each of the Company and the Guarantors shall comply
with all the provisions of Section 6(c) hereof and shall use its commercially reasonable
efforts to effect such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company and the Guarantors will as expeditiously as is commercially
reasonable prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.




     (c) General Provisions. In connection with any Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration Statement and the related
Prospectus required to permit resales of Securities by Broker-Dealers), the Company and the
Guarantors shall:




     (i) use their commercially reasonable efforts to keep such Registration
Statement continuously effective during the period required by this Agreement and
provide all requisite financial statements (including, if required by the Securities
Act or any regulation thereunder, financial statements of the Guarantors for the
period specified in Section 3 or 4 hereof, as applicable); upon the



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occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or omission or
(B) not to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either clause (A)
or (B), use their commercially reasonable efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable thereafter;




     (ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or
4 hereof, as applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rules 424, 430A and 430B under the
Securities Act in a timely manner; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;




     (iii) advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, and (D) of the existence of any fact or the happening of any
event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue



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sky laws, each of the Company and the Guarantors shall use its commercially
reasonable efforts to obtain the withdrawal or lifting of such order at the earliest
practicable time;




     (iv) furnish without charge to the Initial Purchaser (to the extent it is a
selling Holder and has requested such copies), each selling Holder named in any
Registration Statement that has requested such copies, and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment of such
requesting Holders and underwriter(s) in connection with such sale, if any, for a
period of at least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated by
reference) to which the Initial Purchaser of Transfer Restricted Securities covered
by such Registration Statement, if applicable, or the underwriter(s), if any, shall
reasonably object in writing within five Business Days after the receipt thereof
(such objection to be deemed timely made upon confirmation of telecopy transmission
within such period). The objection of the Initial Purchaser or underwriter, if any,
shall be deemed to be reasonable if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;




     (v) to the extent practicable, promptly prior to the filing of any document
that is to be incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchaser, each selling Holder named
in any Registration Statement that has requested such documents, and to the
underwriter(s), if any, make the Company’s and the Guarantors’ representatives
available for discussion of such document and other customary due diligence matters,
subject to customary confidentiality agreements, and include such information in
such document prior to the filing thereof as such selling Holders or underwriter(s),
if any, reasonably may request;




     (vi) make available, subject to customary confidentiality agreements, at
reasonable times for inspection by the Initial Purchaser, the managing
underwriter(s), if any, participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by the Initial
Purchaser or any of the underwriter(s), all financial and other records, pertinent
corporate documents and properties of each of the Company and the Guarantors and
cause the Company’s and the Guarantors’ officers, directors and employees to supply
all information, in each case as shall be reasonably necessary to enable any such
Holder, underwriter, attorney or accountant to exercise any applicable
responsibilities in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior to its




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effectiveness and to participate in meetings with investors to the extent
reasonably requested by the managing underwriter(s), if any;




     (vii) if requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective amendment as
soon as practicable after the Company is notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;




     (viii) cause the Transfer Restricted Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Securities covered thereby or
the underwriter(s), if any;




     (ix) furnish to the Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein by
reference);




     (x) deliver to each selling Holder and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons reasonably may
request; each of the Company and the Guarantors hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling Holders
and each of the underwriter(s), if any, in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;




     (xi) enter into such agreements (including an underwriting agreement), and make
such representations and warranties, and take all such other commercially reasonable
actions in connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any Shelf Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably requested by
the Initial Purchaser or by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any Shelf Registration
Statement contemplated by this Agreement; and whether or not an underwriting
agreement is entered into and whether or not



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the registration is an Underwritten Registration, each of the Company and the
Guarantors shall:




     (A) furnish to each selling Holder (including the Initial Purchaser, if
applicable) and each underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
effectiveness of the Shelf Registration Statement:




     (1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement executed by (y) in the case of the Company,
the Chairman of the Board, Chief Executive Officer or President and
the Chief Financial Officer or Chief Accounting Officer and (z) in
the case of the Guarantors, the President or any Vice President, in
each case, confirming, as of the date thereof, the matters set forth
in paragraphs (ii), (iii) and (iv) of Section 5(e) of the Purchase
Agreement and such other matters as such parties may reasonably
request;




     (2) if requested by a majority of the Selling Holders, an
opinion, dated the of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company and the
Guarantors, covering the matters set forth in the opinion delivered
pursuant to Section 5(c) of the Purchase Agreement and such other
matters customarily covered in opinions requested in similar
situations, and in any event including a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company and the Guarantors, representatives of
the independent public accountants for the Company and the
Guarantors, representatives of the underwriter(s), if any, and
counsel to the underwriter(s), if any, in connection with the
preparation of such Registration Statement and the related Prospectus
and have considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the
foregoing, no facts came to such counsel’s attention that caused such
counsel to believe that the applicable Shelf Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Shelf
Registration Statement as of its date contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements



-12-









 







therein not misleading. Without
limiting the foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and
schedules and other financial data included in any Shelf Registration
Statement contemplated by this Agreement or the related Prospectus,
and such opinion may be further subject to assumptions and
qualifications substantially similar to those set forth in the
opinions delivered pursuant to Section 5(c) of the Purchase
Agreement; and




     (3) a customary comfort letter, dated the date of effectiveness
of the Shelf Registration Statement, from the Company’s independent
accountants, in the customary form and covering matters of the type
customarily requested to be covered in comfort letters by
underwriters in connection with primary underwritten offerings, and
covering or affirming the matters set forth in the comfort letters
delivered pursuant to Section 5(a) of the Purchase Agreement, without
exception;




     (B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section
8 hereof with respect to all parties to be indemnified pursuant to said
Section; and




     (C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(xi)(A)
hereof and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company or any of the
Guarantors pursuant to this Section 6(c)(xi), if any.




If at any time the representations and warranties of the Company and the Guarantors
contemplated in Section 6(c)(xi)(A)(1) hereof cease to be true and correct, the
Company or the Guarantors shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if requested by such
Persons, shall confirm such advice in writing;




     (xii) prior to any public offering of Transfer Restricted Securities, cooperate
with the selling Holders, the underwriter(s), if any, and their respective counsel
in connection with the registration and qualification of the Transfer Restricted
Securities under the state securities or blue sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may request and do any and all other acts
or things necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that none of the Company or the



-13-









 







Guarantors shall be required to
register or qualify as a foreign corporation where it is not then so qualified or to
take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not then so
subject;




     (xiii) issue, upon the request of any Holder of the Securities covered by the
Shelf Registration Statement, Exchange Securities having an aggregate principal
amount equal to the aggregate principal amount of the Securities surrendered to the
Company by such Holder in exchange therefor or being sold by such Holder; such
Exchange Securities to be registered in the name of such Holder or in the name of
the purchaser(s) of such Securities, as the case may be; in return, the Securities
held by such Holder shall be surrendered to the Company for cancellation;




     (xvi) subject to the terms of the Indenture, cooperate with the selling Holders
and the underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any sale of
Transfer Restricted Securities made by such Holders or underwriter(s);




     (xv) use its commercially reasonable efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso contained
in Section 6(c)(xii) hereof;




     (xvi) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall
exist or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein not misleading;




     (xvii) provide a CUSIP number for all Securities not later than the effective
date of the Registration Statement covering such Securities and provide the Trustee
under the Indenture with printed certificates for such Securities which are in a
form eligible for deposit with The Depository Trust Company and take all other
action necessary to ensure that all such Securities are eligible for deposit with
The Depository Trust Company;




     (xviii) cooperate and assist in any filings required to be made with the FINRA
and in the performance of any due diligence investigation by any



-14-









 







underwriter (including any “qualified independent underwriter”) that is required to be retained
in accordance with the rules and regulations of the FINRA;




     (xix) otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally available to
its security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 under the Securities Act (which need not be
audited) for the twelve-month period (A) commencing at the end of any fiscal quarter
in which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Company’s first fiscal
quarter commencing after the effective date of the Registration Statement;




     (xx) cause the Indenture to be qualified under the Trust Indenture Act not
later than the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and to execute, and to use its commercially reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;




     (xxi) cause all Securities covered by the Registration Statement to be listed
on each securities exchange or automated quotation system on which similar
securities issued by the Company are then listed if requested by the Holders of a
majority in aggregate principal amount of Securities or the managing underwriter(s),
if any; and




     (xxii) provide promptly to each Holder upon request each document filed with
the Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.



     Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised
in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any



-15-









 







such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof or shall have received the Advice; provided, however, that no such extension shall
be taken into account in determining whether Additional Interest is due pursuant to Section 5
hereof or the amount of such Additional Interest, it being agreed that the Company’s option to
suspend use of a Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5 hereof.



SECTION 7. Registration Expenses.





     (a) All expenses incident to the Company’s and the Guarantors’ performance of or
compliance with this Agreement will be borne by the Company and the Guarantors, jointly and
severally, regardless of whether a Registration Statement becomes effective, including,
without limitation: (i) all registration and filing fees and expenses (including filings
made by the Initial Purchaser or Holder with the FINRA (and, if applicable, the fees and
expenses of any “qualified independent underwriter,” and one counsel to such person that may
be required by the rules and regulations of the FINRA)); (ii) all fees and expenses of
compliance with federal securities and state securities or blue sky laws; (iii) all expenses
of printing (including printing certificates for the Exchange Securities to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company, the Guarantors and, subject to
Section 7(b) hereof, one counsel to the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Exchange Securities on a
securities exchange or automated quotation system pursuant to the requirements thereof, if
required to so list; and (vi) all fees and disbursements of independent certified public
accountants of the Company and the Guarantors (including the expenses of any special audit
and comfort letters required by or incident to such performance).




     Each of the Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company or the
Guarantors.




     (b) In connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and the Shelf
Registration Statement), the Company and the Guarantors, jointly and severally, will
reimburse the Initial Purchaser and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Fried, Frank, Harris, Shriver & Jacobson LLP or



-16-









 







such other counsel as may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being prepared.



SECTION 8. Indemnification.





     (a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the
Persons referred to in this clause (ii) being hereinafter referred to as a “controlling
person”) and (iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any controlling person (any Person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the fullest
extent lawful, from and against any and all losses, claims, damages, liabilities, judgments,
actions and expenses (including, without limitation, and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or
defending any claim or action, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, including the reasonable fees and expenses of counsel to
any Indemnified Holder), joint or several, directly or indirectly caused by, related to,
based upon, arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or omission that is
made in reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use therein. This
indemnity agreement shall be in addition to any liability that the Company or any of the
Guarantors may otherwise have.




     In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Company or the Guarantors,
such Indemnified Holder shall promptly notify the Company and the Guarantors in writing;
provided, however, that the failure to give such notice shall not relieve any of the Company
or the Guarantors of its obligations pursuant to this Agreement unless the Company or the
Guarantors are materially prejudiced by such failure to give notice. Such Indemnified
Holder shall have the right to employ its own counsel in any such action and the fees and
expenses of such counsel shall be paid, as incurred, by the Company and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder is not
entitled to indemnification hereunder). The Company and the Guarantors shall not, in
connection with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable



-17-









 







for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time for such
Indemnified Holders, which firm shall be designated by the Holders. The Company and the
Guarantors shall be liable for any settlement of any such action or proceeding effected with
the Company’s and the Guarantors’ prior written consent, which consent shall not be withheld
unreasonably, and each of the Company and the Guarantors agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense by reason
of any settlement of any action effected with the written consent of the Company and the
Guarantors. The Company and the Guarantors shall not, without the prior written consent of
each Indemnified Holder, settle or compromise or consent to the entry of judgment in or
otherwise seek to terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or proceeding.




     (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors and their respective directors,
officers of the Company and the Guarantors who sign a Registration Statement, and any Person
controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company or any of the Guarantors, and the respective officers, directors,
partners, employees, representatives and agents of each such Person, to the same extent as
the foregoing indemnity from the Company and the Guarantors to each of the Indemnified
Holders, but only with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any Registration Statement.
In case any action or proceeding shall be brought against the Company, the Guarantors or
their respective directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder
shall have the rights and duties given the Company and the Guarantors, and the Company, the
Guarantors, their respective directors and officers and such controlling person shall have
the rights and duties given to each Holder by the preceding paragraph.




     (c) If the indemnification provided for in this Section 8 is unavailable to an
indemnified party under Section 8(a) or (b) hereof (other than by reason of exceptions
provided in those Sections) in respect of any losses, claims, damages, liabilities,
judgments, actions or expenses referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantors, on the one hand, and the Holders, on the other hand, from
the Initial Placement (which in the case of the Company and the Guarantors shall be deemed
to be equal to the total gross proceeds to the Company and the Guarantors from the Initial
Placement), the amount of Additional Interest which did not become payable as a result of
the filing of the Registration Statement resulting in



-18-









 







such losses, claims, damages,
liabilities, judgments actions or expenses, and such Registration Statement, or if such
allocation is not permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnified Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or
any of the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section 8(a)
hereof, any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.




     The Company, the Guarantors and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8, none of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate, any amount
in excess of the amount by which the total price at which the Securities or Exchange
Securities sold by such Holder exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to
contribute pursuant to this Section 8(c) are several in proportion to the respective
principal amount of Securities held by each of the Holders hereunder and not joint.



SECTION 9. Rule 144A.




     Each of the Company and the Guarantors hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial



-19-









 







owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.



SECTION 10. Participation in Underwritten Registrations.




     No Holder may participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents required under the terms
of such underwriting arrangements.



SECTION 11. Selection of Underwriters.




     The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who
desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker(s) and managing underwriter(s) that will
administer such offering will be selected by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such offering; provided, however, that
such investment banker(s) and managing underwriter(s) must be reasonably satisfactory to the
Company.



SECTION 12. Miscellaneous.





     (a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.




     (b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or
after the date of this Agreement enter into any agreement with respect to its securities
that conflicts with the provisions hereof. Neither the Company nor any of the Guarantors
has previously entered into any agreement granting any registration rights with respect to
its securities to any Person pursuant to which any such Person would have the right to
include any securities in any Registration Statement to be filed with the Commission as
required under this Agreement. The rights granted to the Holders hereunder do not in any
way conflict with the rights granted to the holders of the Company’s or any of the
Guarantors’ securities under any agreement in effect on the date hereof.




     (c) Adjustments Affecting the Securities. The Company will not effect any change, or
permit any change to occur, with respect to the terms of the Securities that would
materially and adversely affect the ability of the Holders to Consummate any Exchange Offer.




     (d) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the



-20-









 







provisions hereof may not be given unless the Company has (i) in the case of Section 5 hereof and this
Section 12(d)(i), obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof, obtained the
written consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding any Transfer Restricted Securities held by the Company or
its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose securities are
being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose securities are not
being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities being tendered or
registered; provided, however, that, with respect to any matter that directly or indirectly
affects the rights of the Initial Purchaser hereunder, the Company shall obtain the written
consent of the Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.




     (e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:




     (i) if to a Holder, at the address set forth on the records of the Registrar
under the Indenture, with a copy to the Registrar under the Indenture; and




     (ii) if to the Company:


The Great Atlantic & Pacific Tea Company

2 Paragon Drive

Montvale, New Jersey 07645

Facsimile: (201) 571-8715

Attention: Brenda M. Galgano, Senior Vice President and

Chief Financial Officer





     with a copy to:


Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, New York 10036

Facsimile: (212) 872-1002

Attention: Patrick J. Dooley and Jeffrey L. Kochian





     All such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when



-21-









 







receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.




     Copies of all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified in the
Indenture.




     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including, without
limitation, and without the need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and to the
extent such successor or assign acquired Transfer Restricted Securities from such Holder.




     (g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same
agreement.




     (h) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.




     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.




     (j) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be affected or
impaired thereby.




     (k) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject matter.



[signature page follows]




-22-









 





IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	THE GREAT ATLANTIC & PACIFIC TEA COMPANY

 	 
	 	By:  	/s/
Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry	 
	 	 	Title:  	Vice President and Assistant Secretary	 
	 
	 	ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.)

NORTH JERSEY PROPERTIES, INC. VI

AAL REALTY CORP.

ADBRETT CORP.

BERGEN STREET PATHMARK, INC.

BRIDGE STUART INC.

EAST BRUNSWICK STUART LLC

LANCASTER PIKE STUART, LLC

MACDADE BOULEVARD STUART, LLC

PLAINBRIDGE LLC

SUPERMARKETS OIL COMPANY, INC.

UPPER DARBY STUART, LLC

BEST CELLARS, INC.

BEST CELLARS MASSACHUSETTS, INC.

BEST CELLARS VA INC.

GRAPE FINDS LICENSING CORP.

GRAPE FINDS AT DUPONT, INC.

BEST CELLARS DC INC.

BEST CELLARS LICENSING CORP.

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	President 	 
	 
	 	COMPASS FOODS, INC.

FOOD BASICS, INC.

HOPELAWN PROPERTY I, INC.

KOHL’S FOOD STORES, INC.

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC

   TEA COMPANY, INC.

KWIK SAVE INC.

MONTVALE HOLDINGS, INC.

 	 




-23-









 





	 	 	 	 	 
	 	SUPER FRESH FOOD MARKETS, INC.

SUPER FRESH FOOD MARKETS OF MARYLAND, INC.

SUPER FRESH / SAVE — A — CENTER, INC.

SUPER MARKET SERVICE CORP.

SUPER PLUS FOOD WAREHOUSE, INC.

SUPERMARKET DISTRIBUTION SERVICES, INC.

2008 BROADWAY, INC.

BEV, LTD.

FARMER JACK’S OF OHIO, INC.

SHOPWELL, INC. (DBA FOOD EMPORIUM)

CLAY-PARK REALTY CO., INC.

AMSTERDAM TRUCKING CORPORATION (F/K/A DAITCH
 CRYSTAL DAIRIES, INC.)

DELAWARE COUNTY DAIRIES, INC.

GRAMATAN FOODTOWN CORP.

SHOPWELL, INC. (ORG IN CONN)

SHOPWELL, INC. (ORG IN MASS)

SHOPWELL, INC. (NEW JERSEY)

THE FOOD EMPORIUM, INC. (CONN)

THE FOOD EMPORIUM, INC. (DELAWARE)

THE FOOD EMPORIUM, INC. (NJ)

TRADEWELL FOODS OF CONN., INC.

APW SUPERMARKET CORPORATION

APW SUPERMARKETS, INC.

WALDBAUM, INC. (DBA WALDBAUM, INC. AND

   FOOD MART)

LBRO REALTY, INC.

MCLEAN AVENUE PLAZA CORP.

SPRING LANE PRODUCE CORP.

THE MEADOWS PLAZA DEVELOPMENT CORP.

GREENLAWN LAND DEVELOPMENT CORP.

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	S E G STORES, INC.

THE OLD WINE EMPORIUM OF

   WESTPORT, INC.

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	Secretary 	 



-24-









 






	 	 	 	 	 
	 	PATHMARK STORES, INC.

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	Senior Vice President and	 
	 	 	Assistant Secretary 	 
	 
	 	BORMAN’S, INC. (DBA FARMER JACK)

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	Vice President and Assistant	 
	 	 	Secretary 	 
	 
	 	MILIK SERVICE COMPANY, LLC





By Pathmark Stores, Inc., its Manager

 	 
	 	By  	/s/ Christopher McGarry
 	 
	 	 	Name:  	Christopher McGarry 	 
	 	 	Title:  	Senior Vice President and	 
	 	 	Assistant Secretary 	 
	 
	 	LO-LO DISCOUNT STORES, INC.

 	 
	 	By  	/s/ William Moss
 	 
	 	 	Name:  	William Moss 	 
	 	 	Title:  	Vice President and Treasurer 	 




-25-









 





     The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:



	 	 	 	 	 
	BANC OF AMERICA SECURITIES LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ John McCusker
 

Name: John McCusker
	 	 
	 

	 	Title: Managing Director	 	 






-26-









 






SCHEDULE A




EXHIBIT A




Guarantors




	 	 	 	 	 
	 	 	Name	 	Jurisdiction of Organization
	1.

	 	Compass Foods, Inc.
	 	Delaware
	 
	 	 	 	 
	2.

	 	Food Basics, Inc.
	 	Delaware
	 
	 	 	 	 
	3.

	 	Onpoint, Inc. (f/k/a Hamilton Property I, Inc.)
	 	Delaware
	 
	 	 	 	 
	4.

	 	Hopelawn Property I, Inc.
	 	Delaware
	 
	 	 	 	 
	5.

	 	Kohl’s Food Stores, Inc.
	 	Wisconsin
	 
	 	 	 	 
	6.

	 	The South Dakota Great Atlantic & Pacific Tea
Company, Inc.
	 	South Dakota
	 
	 	 	 	 
	7.

	 	Kwik Save Inc.
	 	Pennsylvania
	 
	 	 	 	 
	8.

	 	Lo-Lo Discount Stores, Inc.
	 	Texas
	 
	 	 	 	 
	9.

	 	Montvale Holdings, Inc.
	 	New Jersey
	 
	 	 	 	 
	10.

	 	Super Fresh Food Markets, Inc.
	 	Delaware
	 
	 	 	 	 
	11.

	 	North Jersey Properties, Inc. VI
	 	Delaware
	 
	 	 	 	 
	12.

	 	Super Fresh Food Markets of Maryland, Inc.
	 	Maryland
	 
	 	 	 	 
	13.

	 	Super Fresh / Sav-A-Center, Inc.
	 	Delaware
	 
	 	 	 	 
	14.

	 	Super Market Service Corp.
	 	Pennsylvania
	 
	 	 	 	 
	15.

	 	Super Plus Food Warehouse, Inc.
	 	Delaware
	 
	 	 	 	 
	16.

	 	Supermarket Distribution Services, Inc.
	 	Delaware
	 
	 	 	 	 
	17.

	 	2008 Broadway, Inc.
	 	New York
	 
	 	 	 	 
	18.

	 	The Old Wine Emporium of Westport, Inc.
	 	Connecticut
	 
	 	 	 	 
	19.

	 	Borman’s, Inc. (d/b/a Farmer Jack)
	 	Delaware






A-1 









 






	 	 	 	 	 
	 	 	Name	 	Jurisdiction of Organization
	20.

	 	BEV, Ltd.
	 	Delaware
	 
	 	 	 	 
	21.

	 	Farmer Jack’s of Ohio, Inc.
	 	Ohio
	 
	 	 	 	 
	22.

	 	S E G Stores, Inc.
	 	Delaware
	 
	 	 	 	 
	23.

	 	Shopwell, Inc. (d/b/a Food Emporium)
	 	Delaware
	 
	 	 	 	 
	24.

	 	Clay-Park Realty Co., Inc.
	 	New York
	 
	 	 	 	 
	25.

	 	Amsterdam Trucking Corporation (f/k/a Daitch
Crystal Dairies, Inc.)
	 	New York
	 
	 	 	 	 
	26.

	 	Delaware County Dairies, Inc.
	 	New York
	 
	 	 	 	 
	27.

	 	Gramatan Foodtown Corp.
	 	New York
	 
	 	 	 	 
	28.

	 	Shopwell, Inc. (Org in Conn)
	 	Connecticut
	 
	 	 	 	 
	29.

	 	Shopwell, Inc. (Org in Mass)
	 	Massachusetts
	 
	 	 	 	 
	30.

	 	Shopwell, Inc. (New Jersey)
	 	New Jersey
	 
	 	 	 	 
	31.

	 	The Food Emporium, Inc. (Conn)
	 	Connecticut
	 
	 	 	 	 
	32.

	 	The Food Emporium, Inc. (Delaware)
	 	Delaware
	 
	 	 	 	 
	33.

	 	The Food Emporium, Inc. (NJ)
	 	New Jersey
	 
	 	 	 	 
	34.

	 	Tradewell Foods of Conn., Inc.
	 	Connecticut
	 
	 	 	 	 
	35.

	 	APW Supermarket Corporation
	 	Delaware
	 
	 	 	 	 
	36.

	 	APW Supermarkets, Inc.
	 	New York
	 
	 	 	 	 
	37.

	 	Waldbaum, Inc. (d/b/a Waldbaum, Inc. and Food
Mart)
	 	New York
	 
	 	 	 	 
	38.

	 	LBRO Realty, Inc.
	 	New York
	 
	 	 	 	 
	39.

	 	McLean Avenue Plaza Corp.
	 	New York
	 
	 	 	 	 
	40.

	 	Spring Lane Produce Corp.
	 	New York
	 
	 	 	 	 
	41.

	 	The Meadows Plaza Development Corp.
	 	New York






A-2 









 






	 	 	 	 	 
	 	 	Name	 	Jurisdiction of Organization
	42.

	 	Pathmark Stores, Inc.
	 	Delaware
	 
	 	 	 	 
	43.

	 	AAL Realty Corp.
	 	New York
	 
	 	 	 	 
	44.

	 	Adbrett Corp.
	 	Delaware
	 
	 	 	 	 
	45.

	 	Bergen Street Pathmark, Inc.
	 	New Jersey
	 
	 	 	 	 
	46.

	 	Bridge Stuart Inc.
	 	New York
	 
	 	 	 	 
	47.

	 	East Brunswick Stuart LLC
	 	Delaware
	 
	 	 	 	 
	48.

	 	Lancaster Pike Stuart, LLC
	 	Delaware
	 
	 	 	 	 
	49.

	 	MacDade Boulevard Stuart, LLC
	 	Delaware
	 
	 	 	 	 
	50.

	 	Milik Service Company, LLC
	 	Virginia
	 
	 	 	 	 
	51.

	 	Plainbridge LLC
	 	Delaware
	 
	 	 	 	 
	52.

	 	Supermarkets Oil Company, Inc.
	 	New Jersey
	 
	 	 	 	 
	53.

	 	Upper Darby Stuart, LLC
	 	Delaware
	 
	 	 	 	 
	54.

	 	Best Cellars, Inc.
	 	New York
	 
	 	 	 	 
	55.

	 	Best Cellars Massachusetts, Inc.
	 	Massachusetts
	 
	 	 	 	 
	56.

	 	Best Cellars VA Inc.
	 	Virginia
	 
	 	 	 	 
	57.

	 	Grape Finds Licensing Corp.
	 	District of Columbia
	 
	 	 	 	 
	58.

	 	Grape Finds at Dupont, Inc.
	 	District of Columbia
	 
	 	 	 	 
	59.

	 	Best Cellars DC Inc.
	 	District of Columbia
	 
	 	 	 	 
	60.

	 	Best Cellars Licensing Corp.
	 	New York
	 
	 	 	 	 
	61.

	 	Greenlawn Land Development Corp.
	 	New York







A-3