EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of April 9, 1998, by and between CHS ELECTRONICS, INC. a
Florida corporation (the "Company") and SBC WARBURG DILLON READ INC., BARCLAYS
CAPITAL, acting through BZW Securities, Inc., SCOTIA CAPITAL MARKETS (USA) INC.,
and XXXXXXX XXXXX & ASSOCIATES, INC. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated April 6, 1998 between the Company, the Subsidiary Guarantors named therein
and the Initial Purchasers (the "Purchase Agreement"), which provides for the
sale by the Company to the Initial Purchasers of U.S. $200,000,000 aggregate
principal amount of the Company's 9_% Senior Notes due 2005 (the "Initial
Notes"). In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
direct and indirect transferees and assigns the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"CLOSING TIME" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMMISSION" shall mean the United States Securities and
Exchange Commission.
"COMPANY" shall have the meaning set forth in the preamble of
this Agreement and also includes the Company's successors.
"DEPOSITARY" shall mean The Depository Trust Company, or any
other depositary appointed by the Company; PROVIDED, HOWEVER, that any
such depositary must at all times have an address in the Borough of
Manhattan, in The City of New York.
"EXCHANGE ACT" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time, and the rules and
regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall mean Senior Notes due 2005 issued by
the Company under the Indenture containing terms identical to the
Initial Notes (except that (i) interest
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thereon shall accrue from the last date on which interest was paid on
the Initial Notes or, if no such interest has been paid, from the date
of their original issue, (ii) the transfer restrictions thereon shall
be eliminated and (iii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated), to be offered
to Holders of Notes in exchange for Initial Notes pursuant to the
Exchange Offer.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
of Registrable Notes for Exchange Notes pursuant to Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 covering the Registrable Notes
(or, if applicable, on another appropriate form), and all amendments
and supplements to such registration statement, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"HOLDERS" shall mean the Initial Purchasers, for so long as
they own any Registrable Notes, and each of their successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Notes under the Indenture.
"INDENTURE" shall mean the Indenture relating to the Initial
Notes and the Exchange Notes dated as of April 9, 1998 among the
Company and The Chase Manhattan Bank, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the
preamble of this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; PROVIDED
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent holders of Registrable Notes if such
subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"NOTES" shall mean the Initial Notes and the Exchange Notes.
"PERSON" shall mean an individual, partnership, limited
liability company,
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corporation, trust or unincorporated organization, company, or a
government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Notes covered by a
Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
"REGISTRABLE NOTES" shall mean the Initial Notes represented
by the global certificate registered in the name of Cede & Co., as
nominee of DTC, at the time of filing of any Registration Statement
with respect to Initial Notes, together with any additional Initial
Notes that may be or become represented by such certificate at any time
during the Exchange Offer; PROVIDED, HOWEVER, that the Initial Notes
shall cease to be Registrable Notes when (i) a Registration Statement
with respect to such Initial Notes shall have been declared effective
under the Securities Act and such Initial Notes shall have been
disposed of pursuant to such Registration Statement, (ii) such Initial
Notes shall have ceased to be outstanding or (iii) such Initial Notes
have been exchanged for Exchange Notes upon consummation of the
Exchange Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all Commission
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with securities or blue sky laws of any
State of the United States of America or securities or other similar
laws of other jurisdictions and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with qualification of any of the
Exchange Notes or Registrable Notes under blue sky laws of any State of
the United States and securities or other similar laws of other
jurisdictions), (iii) all expenses of preparing certificates
representing the Exchange Notes and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all expenses of having the registrable Notes or the
Exchange Notes designated for trading in the Private Offerings, Resales
and Trading through Automated Linkages Market, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities and other laws, (vii) the fees and disbursements
of counsel for the Company and its subsidiaries and the fees and
expenses of the independent public accountants of the Company and its
subsidiaries, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, (viii) the fees and expenses of the trustee, any registrar,
any depositary and any paying agent, including their respective
counsel, and any escrow agent or custodian, and (ix) any fees and
disbursements of the
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underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement,
but excluding (except as otherwise provided herein) fees and expenses
of counsel to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Notes by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement
of the Company which covers any of the Exchange Notes or Registrable
Notes pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SECURITIES ACT" shall mean the United States Securities Act
of 1933, as amended from time to time, and the rules and regulations of
the Commission promulgated thereunder.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) of this Agreement which covers Registrable Notes in an
aggregate principal amount of up to $300,000,000 on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may
be adopted by the Commission, and all 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.
"SUBSIDIARY GUARANTORS" shall have the meaning given to such
term in the Indenture.
"TRUSTEE" shall mean the trustee with respect to the Initial
Notes and the Exchange Notes under the Indenture.
2. REGISTRATION UNDER THE SECURITIES ACT. (a) EXCHANGE OFFER
REGISTRATION. To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the Commission, the Company at its cost, shall
(A) file with the Commission within 60 calendar days after the date hereof an
Exchange Offer Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Notes for Exchange Notes, (B) use its
best efforts to cause such Exchange Offer Registration Statement to be declared
effective by the Commission within 120 days after the date hereof, (C) use its
best efforts to cause such Registration Statement to remain effective until the
closing of the Exchange Offer and (D)
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consummate the Exchange Offer within 150 days following the date hereof. The
Exchange Notes will be issued under the Indentures. Upon the effectiveness of
the Exchange Offer Registration Statement, the Company shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers (as defined in Section 4(f))
eligible and electing to exchange Registrable Notes for Exchange Notes (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the Securities Act, acquires the Exchange Notes in the ordinary course
of such Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing the
Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30
business days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, Eastern Standard Time, on the
last business day on which the Exchange Offer shall remain open, by
sending to the institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his election to have such
Initial Notes exchanged; and
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter
of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the
Company; and
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(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in amount to
the Registrable Notes of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date
on which interest was paid on the Registrable Notes surrendered in exchange
therefor or, if no interest has been paid on the Registrable Notes, from the
date hereof. The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the Staff of the
Commission. Each Holder of Registrable Notes (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Notes for Exchange Notes
in the Exchange Offer shall have represented that (i) it is not an affiliate (as
defined in Rule 405 under the Securities Act) of the Company, (ii) any Exchange
Notes to be received by it were acquired in the ordinary course of business and
(iii) at the time of the commencement of the Exchange Offer it has no
arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. The Company shall inform
the Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable Notes in
the Exchange Offer.
(b) SHELF REGISTRATION. (i) If, because of any change in law
or applicable interpretations thereof by the Staff of the Commission, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2(a) hereof, or (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 120 days following the date hereof or
the Exchange Offer is not consummated within 150 days following the date hereof,
or (iii) upon the request of any Initial Purchaser (with respect to any
Registrable Notes which it acquired directly from the Company) following the
consummation of the Exchange Offer if such Initial Purchaser shall hold
Registrable Notes which it acquired directly from the Company and if the Initial
Purchaser is not permitted, in the opinion of counsel to such Initial Purchaser,
pursuant to applicable law or applicable interpretation of the Staff of the
Commission to participate in the Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, file with the Commission a
Shelf Registration Statement relating to the offer and sale of the
Registrable Notes by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders of such
Registrable Notes and set forth in such Shelf Registration Statement,
and use its best efforts to cause such Shelf Registration Statement to
be declared effective by the Commission by the 150th day after the date
hereof (or promptly in the event of a request by an Initial Purchaser
pursuant to clause (iv) above). In the event that the Company is
required to file a Shelf Registration Statement upon the request of any
Holder (other than an Initial Purchaser) not eligible to participate in
the Exchange Offer pursuant to clause
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(iii) above or upon the request of an Initial Purchaser pursuant to
clause (iv) above, the Company shall file and have declared effective
by the Commission both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Notes and a
Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect
to offers and sales of Registrable Notes held by such Holder or the
Initial Purchasers after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement effective for a period of at least 24 months from the date
hereof in order to permit the Prospectus forming part thereof to be
usable by Holders until all of the Notes have been redeemed,
repurchased or repaid or for such shorter period which will terminate
when all of the Registrable Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement;
and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and any
supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) 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 and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), 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
light of the circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 4(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Notes copies of any such supplement or amendment promptly after its
being used or filed with the Commission.
No Holder may include any of its Registrable Notes in any
Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 10 business days after
receipt of a request therefor, such information as the Company may reasonably
request specified in Item 507 of Regulation S-K under the Securities Act 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 also agrees to furnish promptly to the Company all
information required to be disclosed
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in order to make the information previously furnished to the Company by such
Holder not materially misleading.
(c) EXPENSES. The Company shall be liable for and pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) or 2(b). Each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement as the case may be,
to become, or to remain, effective during the requisite period if the Company
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law or
(B) such action is taken by the Company in good faith and for valid business
reasons (but not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the Company
promptly complies with the requirements of Section 4(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
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 Registrable Notes pursuant to a 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, until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume.
(e) LIQUIDATED DAMAGES. In the event that (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
60th day following the date hereof, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 120th day following the
date hereof or (iii) the Exchange Offer is not consummated on or prior to the
150th day following the date hereof or a Shelf Registration Statement with
respect to the Registrable Notes is not declared effective on or prior to the
150th day following the date hereof, (each such event referred to in clauses (i)
through (iii) above a "Registration Default"), then the Company will pay
liquidated damages ("Liquidated Damages") to each Holder, during the first
90-day period immediately following the occurrence of such Registration Default
in an amount equal to $.05 per week per $1,000 principal amount of Notes held by
such Holder. The amount of the Liquidated Damages will increase an additional
$.05 per week per $1,000 principal amount for each subsequent 90-day period
until the applicable Registration Default has been cured, up to a maximum amount
of Liquidated Damages of $.30 per week per $1,000 principal amount of
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Notes. All accrued Liquidated Damages will be paid by the Company on each
interest payment date to the Global Note Holder by wire transfer of immediately
available funds or by federal funds check and to the Holders of certificated
securities by mailing a check to such Holders' registered addresses. Following
the cure of all Registration Defaults, the accrual of Liquidated Damages will
cease.
3. SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Initial Purchaser and the Holders, the Company acknowledges
that any failure by the Company to comply with its respective obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchaser or
any Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Sections 2(a) and 2(b) hereof.
4. REGISTRATION PROCEDURES. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the Commission a Registration
Statement, within the time period specified in Section 2, on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Notes by the
selling Holders thereof and (iii) shall comply as to form in all
material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required
by the Commission to be filed therewith, and use its best efforts to
cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each 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 comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes, at least ten days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Notes is
being filed, advising such Holders that the distribution of Registrable
Notes will be made in accordance with the method elected by the
Majority Holders; and (ii) furnish to each Holder of Registrable Notes,
to counsel for the Initial Purchasers and to each underwriter of an
underwritten offering of Registrable Notes, if
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any, without charge, as many copies of each Prospectus and any
translation thereof required by applicable law, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or underwriter may reasonably
request, including financial statements and schedules and, if the
Holder so requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition
of the Registrable Notes; and (iii) subject to the last paragraph of
Section 4, hereby consent to the use of the Prospectus, including each
preliminary Prospectus, or any amendment or supplement thereto by each
of the selling Holders of Registrable Notes in connection with the
offering and sale of the Registrable Notes covered by the Prospectus or
any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Notes under all applicable securities or "blue sky" laws of
any State of the United States of America or securities and other
similar laws of other jurisdictions as any Holder of Registrable Notes
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall reasonably request by
the time the applicable Registration Statement is declared effective by
the Commission, to cooperate with the Holders in connection with any
filings required to be made with the NASD or any other securities
exchange, keep each such registration or qualification effective during
the period such Registration Statement is required to be effective and
do any and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Registrable Notes owned by such Holder,
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 jurisdiction where it is not
then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes promptly and, if requested by such Holder, confirm
such advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the Commission or any
securities authority of any State of the United States of America or
any other jurisdiction for post-effective amendments and supplements to
a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) if, between
the effective date of a Registration Statement and the closing of any
sale of Registrable Notes covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the
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Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening
of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in
such Shelf Registration Statement or the related Prospectus untrue in
any material respect or which requires the making of any changes in
such Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the
Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) (i) in the case of an Exchange Offer, (A) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by registered broker-dealers who have exchanged
their Registrable Notes for Exchange Notes for the resale of such
Exchange Notes, (B) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (C) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Notes acquired for its own account
as a result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange Notes for
Registrable Notes pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange
Notes, (D) subject to the last paragraph of this Section 4, hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
broker-dealer in connection with the sale or transfer of the Exchange
Notes covered by the Prospectus or any amendment or supplement thereto,
and (E) include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in the
Exchange Offer (x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Registrable Notes,
it represents that the Registrable Notes to be exchanged for
Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of such Exchange Notes pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment
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described in subclause (x) and by delivering a Prospectus in connection
with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the
Securities Act;
(ii) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall be
either of the Initial Purchasers or one of its affiliates, unless it
elects not to act as such representative) any "cold comfort" letters
with respect to the Prospectus in the form existing on the last date
for which exchanges are accepted pursuant to the Exchange Offer and
with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (iii) below;
(iii) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of one year following the closing
of the Exchange Offer; and
(iv) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement
as would otherwise be contemplated by Section 4(b), or take any other
action as a result of this Section 4(f), for a period exceeding one
year after the last date for which exchanges are accepted pursuant to
the Exchange Offer (as such period may be extended by the Company) and
Participating Broker-Dealers shall not be authorized by the Company to,
and shall not, deliver such Prospectus after such period in connection
with resales contemplated by this Section 4;
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Notes copies of any
request by the Commission or any other securities authority for
amendments or supplements to a Registration Statement and Prospectus or
for additional information;
(h) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
13
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends; and cause such
Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at
least one business day prior to the closing of any sale of Registrable
Notes;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Section 4(e)(ii)-(vi) hereof, use its best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference (including any translation thereof required by applicable
law) or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such Prospectus
will not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(l) obtain a CUSIP number, a CINS number and an ISIN number
for all Exchange Notes, or Registrable Notes, as the case may be, not
later than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Notes or the
Registrable Notes, as the case may be, in a form eligible for deposit
with the applicable Depositary and meeting the requirements of the
NASD;
(m) (i) cause the Indentures to be qualified under the United
States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and any other applicable law in connection with the registration
of the Exchange Notes, or Registrable Notes, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to
the Indentures as may be required for the Indentures to be so qualified
in accordance with the terms of the Trust Indenture Act and such other
applicable law and (iii) 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 or other appropriate regulatory body to enable the
Indenture to be so
14
qualified in a timely manner; and
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders) in order to expedite or facilitate the disposition of
such Registrable Notes and in such connection whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Notes and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as
may be reasonably requested by such Holders and underwriters;
(ii) 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, and the holders of a majority
in principal amount of the Registrable Notes being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and will
use best efforts to have such letters addressed to the selling
Holders of Registrable Notes, such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable Notes,
which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 6 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may
be reasonably
15
requested and as are customarily delivered in similar
offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of
all Registrable Notes of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which
shall be no earlier than 10 days following the date of such notice, by
which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten
offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes
and any underwriters participating in any disposition pursuant to a
Shelf Registration Statement and any counsel or accountant retained by
such Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of the Company reasonably
requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with such
Registration Statement subject to reasonable confidentiality
agreements;
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchasers, and use its best efforts to make such changes in
any such document prior to the filing thereof as the Initial Purchasers
or their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Notes, to the Initial Purchasers and to the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any,
and use its best efforts to make such changes in any such document
prior to the filing thereof as the Holders of Registrable Notes, the
Initial Purchasers on behalf of such Holders, their counsel and any
underwriter may reasonably request; and (iii) cause the representatives
of the Company to be available for discussion of such document as shall
be reasonably requested by the Holders of Registrable Notes, the
Initial Purchasers on behalf of such Holders or any underwriter and
shall not at any time make any filing of any such document of which
such Holders, the Initial Purchasers on behalf of such Holders, counsel
to the Initial Purchasers or any underwriter shall not
16
have previously been advised and furnished a copy or to which such
Holders, the Initial Purchasers on behalf of such Holders, counsel to
the Initial Purchasers or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Notes to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Notes, if
any, unless the Registrable Notes are already so rated;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Notes to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Notes and make such representations, in each case, as the
Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
4(e)(ii)-(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes current at the time of receipt of
such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes pursuant to a Shelf Registration Statement as a
result of the happening of any event or the discovery of any facts, each of the
kind described in Section 4(e)(vi) hereof, the Company shall be deemed to have
used its best efforts to keep the Shelf Registration Statement effective during
such period of suspension provided that the Company shall use its best efforts
to file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
17
5. UNDERWRITTEN REGISTRATIONS. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Subsidiary Guarantors shall indemnify and hold harmless the Initial Purchasers,
each Holder, including Participating Broker-Dealers, each underwriter who
participates in an offering of Registrable Notes, their respective affiliates,
and their respective directors, officers, employees, agents and each Person, if
any, who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which
Exchange Notes or Registrable Notes were registered under the
Securities Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; PROVIDED
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including fees and disbursements of United States and local counsel
chosen by any indemnified party),
18
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
6(a);
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment or
supplement thereto) or the Prospectus (or any amendment or supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Subsidiary Guarantors, the Initial Purchasers, each underwriter who participates
in an offering of Registrable Notes and the other selling Holders and each of
their respective directors and officers (including each officer of the Company
who signed the Registration Statement) and each Person, if any, who controls the
Company, any underwriter, the Initial Purchasers or any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 6(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder, as the case may be, expressly for use in the
Registration Statement (or any amendment thereto), or the Prospectus (or any
amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Notes pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
PROVIDED, HOWEVER, that (x) the indemnified party shall not be required to
permit the indemnifying party to assume the defense of any third party claim
that seeks an injunction, restraining order, declaratory relief or other
non-monetary relief that, if granted, is reasonably likely to have a material
adverse effect on the indemnified party (but the indemnifying party shall have
the right to participate therein), and (y) the indemnified party shall have the
right to participate in the defense of any third party claim where the named
parties to any
19
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have been advised by counsel that there are one or
more legal or equitable defenses available to the indemnified party which are
different from those available to the indemnifying party. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 hereof (whether or not the indemnified parties are actual
or potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request with such request prior to the date of such
settlement.
(e) If the indemnification provided for in any of the
indemnity provisions set forth in this Section 6 is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, the Initial Purchasers on
another hand, and the Holders on another hand, from the offering of the Exchange
Notes or Registrable Notes included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Initial
20
Purchasers or the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Initial Purchasers and the Holders of the Registrable Notes
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity, and the Holders were treated as one entity, for such
purpose) or by another method of allocation which does not take account of the
equitable considerations referred to above in this Section 6. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by an governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any 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. For purposes of this Section 6, each person, if
any, who controls an Initial Purchasers or Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Initial Purchasers or Holder, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
7. MISCELLANEOUS. (a) RULE 144 AND RULE 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, the Company covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the Commission thereunder, that if it ceases to be so
required to file such reports, it will upon the request of any Holder of
Registrable Notes (i) make publicly available such information as is necessary
to permit sales pursuant to Rule 144 under the Securities Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the Securities Act and it will take such further action as
any Holder of Registrable Notes may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (x) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, (y) Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or (z) any similar rules or regulations
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Notes, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is
21
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, 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 Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; PROVIDED, HOWEVER, that no amendment, modification, supplement or
waiver or consent to any departure from the provisions of Section 6 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is with respect to the Initial Purchasers c/o SBC
Warburg Dillon Read Inc., a division of Swiss Bank Corporation, at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopier No. (000) 000-0000, attention of
Xxxx Xxxx, with a copy to King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, telecopier no. (000) 000-0000, attention of Xxxxx Xxxxxxxxx; and
(ii) if to the Company, initially at CHS Electronics, Inc. at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000, telecopier No. (000) 000-0000, attention of Chief
Finance Officer, with a copy to Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Quentel, P.A. at 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, telecopier No.
(000) 000-0000, attention of Xxxx Xxxxxxxxx, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(d).
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 receipt is 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.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of
22
Registrable Notes in violation of the terms hereof or of the Indenture. If any
transferee of any Holder shall acquire Registrable Notes, in any manner, whether
by operation of law or otherwise, such Registrable Notes shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement, and such
Person shall be entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(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.
(j) AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed The Corporation Services Company, 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxx Xxxx 00000-0000 (the "Agent") (and any successor entity), as its authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to this Agreement, the Initial Notes or the Exchange Notes that may
be instituted in any federal or state court in the City of New York, Borough of
Manhattan, State of New York or brought under federal or state securities laws,
and acknowledges that the Agent has accepted such designation, (ii) submits to
the jurisdiction of any such court in any such suit or proceeding and (iii)
agrees that service of process upon the Agent and written notice of said service
to the Company in accordance with Section 7(d) of this Agreement shall be deemed
in every respect effective service of process upon the Company in any such suit
or proceeding. The Company further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of the Agent in full
force and effect so long as any of the Initial Notes or Exchange Notes shall be
outstanding; PROVIDED that the Company may (and, to the extent the Agent ceases
to be able to be
23
served on the basis contemplated herein, shall), by written notice to the
Initial Purchasers and the holders of Initial Notes and Exchange Notes in
accordance with Section 7(d) of this Agreement, designate such additional or
alternative agent for service of process under this Section 7(j) that (i)
maintains an office located in the City of New York, Borough of Manhattan, State
of New York and (ii) is a corporate service company which acts as agent for
service of process for other persons in the ordinary course of its
busine/section/ Such written notice shall identify the name of such agent for
service of process and the address of the office of such agent for service of
process in the City of New York, Borough of Manhattan, State of New York.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement, the Initial Notes, the Exchange Notes, the Indenture (or any similar
agreement used in connection with the Exchange Offer) or the separate written
instrument referenced in this Section 7.
(k) JUDGMENT CURRENCY. The Company agrees to indemnify the
Initial Purchasers, each holder of the Initial Notes and the Exchange Notes and
each indemnified party against any loss incurred by any of them as a result of
any judgement or order being given or made for any amount due under this
Agreement and such judgment or order being expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order and (ii) the spot rate of exchange in the City of New York at which any
such person on the date of payment of such judgment in order is able to purchase
United States dollars with the amount of the Judgment Currency actually received
by such person. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
(l) 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CHS ELECTRONICS, INC.
a Florida corporation
By:/S/ XXXXXXX XXXXXX
---------------------------------
Xxxxxxx Xxxxxx
Chief Executive Officer,
President and Chairman
Confirmed and accepted as of
the date first above written:
SBC WARBURG DILLON READ INC.
BARCLAYS CAPITAL, acting through BZW Securities, Inc.
SCOTIABANK CAPITAL MARKETS (USA) INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: SBC WARBURG DILLON READ INC.
By:/S/ XXXX XXXX
------------------------------
Xxxx Xxxx
Managing Director
By:/S/ XXXXXX XXX
------------------------------
Xxxxxx Xxx
Executive Director
