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CARTER HAWLEY HALE STORES, INC.
6-1/4% Convertible Senior Subordinated Notes Due 2000
REGISTRATION AGREEMENT
New York, New York
December 21, 1993
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Carter Hawley Hale Stores, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to a purchaser (the "Purchaser"), upon the terms set
forth in a purchase agreement of even date herewith (the "Purchase Agreement"),
its 6-1/4% Convertible Senior Subordinated Notes due 2000 (the "Securities")
(the "Initial Placement"). As an inducement to the Purchaser to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for your benefit and (ii) for the
benefit of the holders from time to time of the Securities and the Converted
Securities (as defined below) (including you) (each of the foregoing a "Holder"
and together the "Holders"), as follows:
W I T N E S S E T H:
WHEREAS, the Company and Continental Bank, National Association (the
"Trustee") have entered into an indenture, dated as of December 21, 1993 (as it
may be amended from time to time, the "Indenture"), relating to $125,000,000
aggregate principal amount of Securities and an option relating to $18,750,000
aggregate principal amount of additional Securities;
WHEREAS, Section 6.17 of the Indenture provides that, unless, after the
Closing Date, the Company complies with certain conditions relating to the
filing and effectiveness of a shelf registration statement with respect to the
Securities and the Converted Securities, the per annum interest rate on the
Securities will be adjusted by the percentage specified in the Indenture;
WHEREAS, as provided in Section 6.17 of the Indenture, the Company has
agreed to enter into this Agreement; and
NOW, THEREFORE, the parties hereto hereby agree as follows:
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1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person, directly or
indirectly controlling or controlled by, or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $.01 par value, of the Company.
"Converted Securities" shall mean Securities which have been duly converted
into shares of Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Final Memorandum" has the meaning set forth in the Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Shelf Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Converted Securities, covered by
such Shelf Registration Statement, and all amendments and supplements to the
Prospectus, including post- effective amendments.
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"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration statement of the
Company pursuant to the provisions of Section 2 hereof which covers some or all
of the Securities or Converted Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" means the trustee with respect to the Securities under the
Indenture.
"underwriter" means any underwriter of Securities or Converted Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) The Company agrees that (i) it shall prepare and, not later than 45
days following the Closing Date, shall file with the Commission, a Shelf
Registration Statement providing for resales of the Securities and the
Converted Securities by the Holders thereof; and (ii) within 90 days of the
Closing Date such Shelf Registration Statement shall be declared effective by
the Commission.
(b) The Company shall keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be usable
by Holders for a period of three years from the Closing Date or such shorter
period that will terminate when all the Securities covered by the Shelf
Registration Statement have been registered and sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the "Shelf
Registration Period").
(c) A Shelf Registration Statement pursuant to Section 2.1 hereof will not
be deemed to have become effective unless it has been declared effective by the
Commission; provided, however, that if, after it has been declared effective,
the offering of Securities or Converted Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the Commission or any other governmental agency
or court, such Registration Statement will be deemed not to have been effective
during the period of such interference, and instead shall be deemed to have
been declared effective at such time as the offering of Securities and
Converted Securities pursuant to such Registration Statement may resume.
3. Registration Procedures. In connection with the obligations of the
Company pursuant to Section 2 hereof, the Company shall have the following
obligations:
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(a) The Company shall furnish to you, prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included
therein and shall use its best efforts to reflect in each such document, when
so filed with the Commission, such comments as you or your counsel reasonably
may propose.
(b) The Company shall ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement is available for the sale of the Securities or the Converted
Securities, as the case may be, by the Selling Holders, (iii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iv) any Prospectus forming part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading; (v)
any Shelf Registration Statement complies as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith; and (vi) it
prepares and files with the Commission such amendments and post-effective
amendments to such Shelf Registration Statement effective for the applicable
period specified in Section 2 and cause such Prospectus to be supplemented,
and as so supplemented to be filed pursuant to Rule 424 under the Securities
Act.
(c) (1) The Company shall advise you and the Holders and, if requested by
you or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to the
Shelf Registration Statement or the Prospectus included therein or for
additional information.
(2) The Company shall promptly advise you and the Holders and, if
requested by you or any such Holder, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose;
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(ii) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the securities included therein for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(iii) of the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice shall
be accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made); and
(iv) if between the effective date of such Registration Statement and the
closing of any sale of Securities or Converted Securities covered thereby,
the representations and warranties of the Company contained in any
underwriting agreement, securities sales agreements or other sales agreement
or similar agreement relating to the Offering cease to be true and correct
in all material respects.
(d) The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(e) The Company shall furnish to each Holder of securities included within
the coverage of any Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities covered
by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of securities pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the
Holders of securities included therein and their respective counsel in
connection with the registration or qualification of such securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holders reasonably request in writing and do any and all other acts
or things necessary or advisable to enable the
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offer and sale in such jurisdictions of the securities covered by such Shelf
Registration Statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is not
then so subject.
(h) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities or Converted Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii)
above, the Company shall promptly prepare a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Not later than the effective date of any Shelf Registration Statement
hereunder, the Company shall provide a CUSIP number for the Securities
registered under such Shelf Registration Statement, and provide the
applicable trustee with printed certificates for such Securities, in a form
eligible for deposit with The Depository Trust Company.
(k) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available to
its security holders as soon as practicable after the effective date of the
applicable Shelf Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(l) The Company shall cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner, cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be required for such Indenture
to be qualified in accordance with the terms of the Trust Indenture Act and
execute, and use its best efforts to cause the Trustee to execute all
documents as 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.
(m) The Company may require each Holder of securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as
the Company may from time to time reasonably require for inclusion in such
Shelf Registration Statement.
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(n) The Company shall, if requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement,
such information as the Managing Underwriters and Majority Holders reasonably
agree should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 5 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any,
with respect to all parties to be indemnified pursuant to Section 5 from
Holders of Securities to the Company).
(p) The Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement; (iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each selling
Holder of securities registered thereunder and the underwriters, if any, in
customary form and
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covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and (vi) deliver such
documents and certificates as may be reasonably requested by the Majority
Holders and the Managing Underwritings, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 3(p) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
4. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith. Such expenses shall
include but not be limited to the following: (i) all Commission, stock exchange
or National Association of Securities Dealers, Inc. registration and filing
fees; (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of counsel for any Underwriter or Holders in connection with blue sky
qualification of any of the Notes or Converted Securities), (iii) all expenses
of any persons in preparing or assisting in preparing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements and other documents relating
to the performance of and compliance with this Agreement; (iv) all rating
agency fees; (v) all fees associated with listing of the Converted Securities
with the New York Stock Exchange; and (vi) the fees and disbursements of
counsel for the Company and of independent public accountants of the Company,
including the expenses of any special audits or "comfort" letters required by
or incident to such performance and compliance.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Company agrees to indemnify and hold harmless each
Holder of securities covered thereby (including each Purchaser), the directors,
officers, employees and agents of each such Holder and each person who controls
any such Holder within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
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alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as provided
in Section 5(d), any underwriters of Securities registered under a Shelf
Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Purchaser and the selling Holders provided in this
Section 5(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 3(o) hereof.
(b) Each Holder of securities covered by a Shelf Registration Statement
(including each Purchaser) severally agrees to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 or
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 5, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the
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indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Shelf Registration Statement which resulted in such
Losses; provided, however, that in no case shall any Purchaser or any
subsequent Holder of any Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such
underwriter under the Shelf Registration Statement which resulted in such
Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) the total amount of additional interest which the
Company was not required to pay as a result of registering the securities
covered by the Shelf Registration Statement which resulted in such Losses.
Benefits received by the Initial Purchaser shall be deemed to be equal to the
total purchase discounts and commissions as set forth on the cover page of the
Final Memorandum, and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Securities registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if
contribution were
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determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Shelf Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 5 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
Section 5 hereof, and will survive the sale by a Holder of securities covered
by a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent
of the Holders of at least a majority of the then outstanding aggregate
principal amount of Securities; provided that, with respect to any matter
that directly or indirectly affects the rights of any Purchaser hereunder,
the Company shall obtain the written consent of each such Purchaser against
which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of securities being sold rather
than registered under such Shelf Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first- class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 6(c), which
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address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy in like manner
to Salomon Brothers Inc;
(2) if to you, initially at the respective address set forth in the
Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) 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 the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities. The Company hereby agrees
to extend the benefits of this Agreement to any Holder of Securities and any
such Holder may specifically enforce the provisions of this Agreement as if
an original party hereto.
(e) 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.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its Affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed
to be
[L120333.4] 12
13
Affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(j) The sole and exclusive remedy of you and the Holders for any failure
of the Company to perform any of its obligations under Section 2 hereof shall
be as set forth in Section 6.17 of the Indenture.
Please confirm that the foregoing correctly sets forth the agreement between
the Company and you.
Very truly yours,
CARTER HAWLEY HALE STORES, INC.
By: ______________________________
Name:
Title:
Accepted in New York, New York
December __, 1993
SALOMON BROTHERS INC
By: SALOMON BROTHERS INC
By: ___________________________
Title:
[L120333.4] 13