EXHIBIT 4.06
_________________________________________________________________
11-5/8% POOLED PROJECT BONDS, SERIES A DUE 2012
REGISTRATlON RIGHTS AGREEMENT
Dated July 3 1, 1996
by and among
PANDA FUNDING CORPORATION
PANDA INTERFUNDING CORPORATION
and
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.,
_________________________________________________________________
This Registration Rights Agreement is made and entered into this
31st day of July, 1996, by and among Panda Funding Corporation,
a Delaware corporation (the "Issuer"), Panda Interfunding
Corporation' a Delaware corporation (the "Company") and ▇▇▇▇▇▇▇▇▇
& Company, Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
July 26, 1996, among the Issuer, the Company, Panda Energy
International, Inc., a Texas corporation, and the Initial
Purchaser (the "Purchase Agreement"). In order to induce the
Initial Purchaser to enter into the Purchase Agreement, the
Issuer and the Company have agreed to provide the registration
rights provided for in this Agreement to the Initial Purchaser
and its respective direct and indirect transferees. The
execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1.Definitions:
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate"
shall mean 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
"affiliated," "controlling" and "controlled" have meanings
correlative to the forgoing.
Agreement: This Registration Rights Agreement, as the same
may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
Bonds: The 11-5/8% Pooled Project Bonds, Series A, due 2012,
of the Issuer, unconditionally guaranteed the Company and,
issued pursuant to the Indenture.
Business Day: Any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are
required or authorized by law or other government action to be
closed.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term
"Exchange Offer" shall mean validly and lawfully to issue and
deliver the Exchange Bonds pursuant to the Exchange Offer for
all Bonds validly tendered and not validly withdrawn pursuant
thereto in accordance with the terms of this Agreement.
Consummation Date: The date that is 30 Business Days
immediately following the date that the Exchange Registration
Statement shall have been declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Bonds: The _____% Pooled Project Bonds, Series B,
due 2011, of the Issuer, unconditionally guaranteed by the
Company, issued pursuant to the Indenture, and that are
identical to the Bonds in all material respects, except that
the provisions regarding restrictions on transfer shall be
modified, as appropriate, and the issuance thereof pursuant to
the Exchange Offer shall have been registered pursuant to an
effective Registration Statement in compliance with the
Securities Act.
Exchange Offer: An offer to issue, in exchange for any and
all of the Bonds, a like aggregate principal amount of
Exchange Bonds, which offer shall be made by the Issuer and
the Company pursuant to Section 2 hereof.
Exchange Registration Statement: As defined in Section 2(a)
hereof.
Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of July 3l, 1996, among
the Issuer, the Company and Fleet National Bank, as trustee
thereunder, pursuant to which the Bonds are issued, as amended
or supplemented from time to time in accordance with the terms
thereof.
Initial Purchaser: ▇▇▇▇▇▇▇▇▇ & Company, Inc.
Issue Date: As defined in Section 2(a).
Issuer: As defined in the preamble hereof.
Participating Broker-Dealer: As defined in Section 2(e)
hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Bonds: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any 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 promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of
the Bonds, Exchange Bonds or Private Exchange Bonds covered by
such Registration Statement, and all other amendments and
supplements to any such prospectus, including post-effective
amendments, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such
prospectus.
Registration Default: As defined in Section 4(a) hereof.
Registration Statement: Any registration statement of the
Issuer and the Company that covers any of the Bonds, Exchange
Bonds or Private Exchange Bonds pursuant to the provisions of
this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed
to be incorporated by reference, if any, in such registration
statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
a such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC
as a replacement thereto having substantially the same effect
as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
Shelf Registration Statement: As defined in Section 3 hereof.
Special Counsel: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel to
the holders of Transfer Restricted Securities, or such other
counsel (but not more than one such counsel) as shall be
agreed upon by the Issuer, the Company and holders of a
majority in aggregate principal amount of Transfer Restricted
Securities, the expenses of which holders of Transfer
Restricted Securities will be reimbursed by the Issuer and the
Company pursuant to Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Bonds, upon original
issuance thereof, and at all times subsequent thereto, each
Exchange Bond as to which Section 3(a)(ii) hereof is
applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Bond upon original issuance
thereof and at all times subsequent thereto, until in the case
of any such Bond, Exchange Bond or Private Exchange Bond, as
the case may be, the earliest to occur of (i) the date on
which any such Bond has been exchanged by a person other than
a Participating Broker-Dealer for an Exchange Bond (other than
with respect to an Exchange Bond as to which Section 3(a)(ii)
hereof applies) pursuant to the Exchange Offer, (ii) with
respect to Exchange Bonds received by Participating
Broker-Dealers in the Exchange Offer, the earlier of (x) the
date on which such Exchange Bond has been sold by such
Participating Broker-Dealer by means of the Prospectus
contained in the Exchange Registration Statement and (y) the
date on which the Exchange Registration Statement has been
effective under the Securities Act for a period of 6 months
after the Consummation Date, (iii) a Shelf Registration
Statement covering such Bond, Exchange Bond or Private
Exchange Bond has been declared effective by the SEC and such
Bond, Exchange Bond or Private Exchange Bond, as the case may
be, has been disposed of in accordance with such effective
Shelf Registration Statement, (iv) the date on which such
Bond, Exchange Bond or Private Exchange Bond, as the case may
be, is distributed to the public pursuant to Rule 144 (or any
similar provisions then in effect) or is saleable pursuant to
Rule 144(k) promulgated by the SEC pursuant to the Securities
Act or (v) the date on which such Bond, Exchange Bond or
Private Exchange Bond, as the case may be, ceases to be
outstanding for purposes of the Indenture or any other
indenture under which such Exchange Bond or Private Exchange
Bond was issued.
Trustee: The trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in connection with which securities are sold to
an underwriter for re-offering to the public pursuant to an
effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the SEC or the staff of the
SEC, the Issuer and the Company shall (A) prepare and, on or
prior to 90 days after the date of original issuance of the
Bonds (the "Issue Date"), file with the SEC a Registration
Statement under the Securities Act with respect to an offer
by the Issuer and the Company to the holders of the Bonds to
issue and deliver to such holders, in exchange for Bonds, a
like principal amount of Exchange Bonds, (B) use their best
efforts to cause the Registration Statement relating to the
Exchange Offer to be declared effective by the SEC under the
Securities Act on or prior to 180 days after the Issue Date,
and (C) commence the Exchange Offer and use best efforts to
issue, on or prior to the Consummation Date, the Exchange
Bonds. The offer and sale of the Exchange Bonds pursuant to
the Exchange Offer shall be registered pursuant to the
Securities Act on the appropriate form (the "Exchange
Registration Statement") and duly registered or qualified
under state securities or Blue Sky laws in accordance with
Section 5(h) and will comply with all applicable tender
offer rules and regulations under the Exchange Act and such
state securities or Blue Sky laws. The Exchange Offer shall
not be subject to any condition, other than that the
Exchange Offer does not violate any applicable law or
interpretation of the SEC or the staff of the SEC. Upon
consummation of the Exchange Offer in accordance with this
Section 2, the Issuer and the Company shall have no further
registration obligations other than with respect to (i)
Private Exchange Bonds, (ii) Exchange Bonds held by
Participating Broker-Dealers and (iii) Bonds or Exchange
Bonds as to which Section 3(a)(ii) hereof applies. No
securities shall be included in the Exchange Registration
Statement other than the Exchange Bonds.
(b) The Issuer and the Company may require each holder of
Bonds as a condition to its participation in the Exchange
Offer to represent to the Issuer and the Company and their
counsel in writing (which may be contained in the applicable
letter of transmittal) that at the time of the consummation
of the Exchange Offer (i) any Exchange Bonds received by
such holder will be acquired in the ordinary course of its
business, (ii) such holder will have no arrangement or
understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of
the Exchange Bonds and (iii) such holder is not an Affiliate
of the Issuer or the Company, or if it is an Affiliate of
the Issuer or the Company, it will comply with the
registration and prospectus delivery requirements of the
Securities Act, to the extent applicable.
(c) To the extent not prohibited by any applicable law or
applicable interpretation of the SEC or the staff of the
SEC, if, prior to consummation of the Exchange Offer, the
Initial Purchaser holds any Bonds acquired by it and having,
or which are reasonably likely to be determined to have, the
status of an unsold allotment in the initial distribution,
or any other holder of Bonds is not entitled to participate
in the Exchange Offer, the Issuer and the Company upon the
request of the Initial Purchaser or any such holder shall,
simultaneously with the delivery of the Exchange Bonds in
the Exchange Offer, issue and deliver to the Initial
Purchaser and any such holder, in exchange (the "Private
Exchange") for such Bonds held by the Initial Purchaser and
any such holder, a like principal amount of debt securities
of the Issuer and the Company that are identical in all
material respects to the Exchange Bonds (the "Private
Exchange Bonds") (and which are issued pursuant to the same
indenture as the Exchange Bonds). The Private Exchange
Bonds shall bear the same CUSIP number as the Exchange
Bonds.
(d) Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the SEC or the staff of
the SEC, the Issuer and the Company shall mail the Exchange
Offer Prospectus and appropriate accompanying documents,
including appropriate letters of transmittal, to each holder
of Bonds providing, in addition to such other disclosure as
are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Bonds validly tendered will be
accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange
Date"), which date shall in no event be later than the
Consummation Date (unless otherwise required by
applicable law);
(iii) that holders of Bonds electing to have a Bond
exchanged pursuant to the Exchange Offer will be
required to surrender such Bond, together with the
enclosed letters of transmittal, to the institution and
at the address (located in the city of New York)
specified in the notice prior to the close of business
on the Exchange Date; and
(iv) that holders of Bonds that do not tender all such
securities pursuant to the Exchange Offer may no longer
have any registration rights hereunder with respect to
Bonds not tendered.
Promptly after the Exchange Date, the Issuer and the Company
shall:
(i) accept for exchange all Bonds or portions thereof
validly tendered and not validly withdrawn pursuant to
the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Bonds or portions thereof so
accepted for exchange by the Issuer and the Company, and
issue, cause the Trustee under the Indenture (or the
indenture pursuant to which the Exchange Bonds are
issued) to authenticate, and mail to each holder of
Bonds, Exchange Bonds equal in principal amount to the
principal amount of the Bonds surrendered by such
holder.
(e) The Issuer, the Company and the Initial Purchaser
acknowledge that the staff of the SEC has taken the position
that any broker-dealer that owns Exchange Bonds that were
received by such broker-dealer for its own account in the
Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of such Exchange Bonds (other than a resale of an
unsold allotment resulting from the original offering of the
Bonds).
The Issuer, the Company and the Initial Purchaser also
acknowledge that it is the SEC staff's position that if the
Prospectus contained in the Exchange Registration Statement
includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-
Dealers may resell the Exchange Bonds, without naming the
Participating Broker-Dealers or specifying the amount of
Exchange Bonds owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act In
connection with re-sales of Exchange Bonds for their own
accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer, the Issuer and the Company agree (x) to use
their best efforts to keep the Exchange Registration
Statement continuously effective for a period of up to 6
months or such earlier date as each Participating Broker-
Dealer shall have notified the Company in writing that such
Participating Broker-Dealer has resold all Exchange Bonds
acquired Exchange Offer, (y) to comply with the provisions
of Section 5 of this Agreement, as they relate to the
Exchange Offer and the Exchange Registration Statement, and
(z) to deliver to such Participating Broker-Dealer a "cold
comfort" letter of the independent public accountants of the
Issuer and the Company and a legal opinion as to matters
reasonably requested by such Participating Broker-Dealer
relating to the Exchange Registration Statement and the
related Prospectus and any amendments or supplements
thereto.
(f) The Initial Purchaser shall have no liability to any
Participating Broker-Dealer with respect to any request made
pursuant to Section 2(e).
(g) Accrued but unpaid interest on any Bond that is
exchanged for an Exchange Bond or a Private Exchange Bond
pursuant to this Agreement shall be paid on or before the
first interest payment date on the Exchange Bonds and the
Private Exchange Bonds, as the case may be.
(h) The Exchange Bonds and the Private Exchange Bonds may
be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, which
in either event shall provide that the Exchange Bonds shall
not be subject to the transfer restrictions set forth in the
Indenture, except in any case where an Exchange Bond
constitutes a Transfer Restricted Security. The Indenture
or such indenture shall provide that the Exchange Bonds, the
Private Exchange Bonds and the Bonds shall vote and consent
together on all matters as one class and that neither the
Exchange Bonds, the Private Exchange Bonds nor the Bonds
will have the right to vote or consent as a separate class
on any matter.
3. Shelf Registration.
(a) If (i) the Issuer or the Company is not permitted to
file the Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer Is
not permitted by any applicable law or applicable
interpretation of the SEC or the staff of the SEC or (ii)
any holder of a Bond notifies the Issuer or the Company on
or prior to the Exchange Date that (A) due to a change in
law or SEC policy it is not entitled to participate in the
Exchange Offer, (B) due to a change in law or SEC policy it
may not resell the Exchange Bonds acquired by it in the
Exchange Offer to the public without delivering a prospectus
and the Prospectus contained in the Exchange Registration
Statement is not legally available for such re-sales by such
holder or (C) it is a broker-dealer that owns Bonds
(including the Initial Purchaser that holds Bonds as a part
of an unsold allotment from the original offering of the
Bonds) acquired directly from the Issuer, the Company or an
affiliate of the Issuer or the Company or (iii) any holder
of Private Exchange Bonds so requests within 120 days after
the consummation of the Private Exchange (each such event
referred to in clauses (i) through (iii), a "Shelf Filing
Event"), the Issuer and the Company shall cause to be filed
with the SEC pursuant to Rule 415 a shelf registration
statement (the "Shelf Registration Statement") on or prior
to the later of (x) 90 days after the Issue Date and (y) 30
days after the occurrence of such Shelf Filing Event,
relating to all Transfer Restricted Securities (the "Shelf
Registration") the holders of which have provided the
information required pursuant to Section 3(b) hereof, and
shall use their best efforts to have the Shelf Registration
Statement declared effective by the SEC on or prior to 90
days after the occurrence of such Shelf Filing Event,
provided that if the Issuer and the Company have not
consummated the Exchange Offer within 180 days of the Issue
Date, then the Issuer and the Company shall cause the Shelf
Registration Statement to be filed with the SEC on or prior
to the 181st day after the Issue Date and shall use their
best efforts to have the Shelf Registration Statement
declared effective by the SEC within 60 days of the date of
filing thereof. In such circumstances, the Issuer and the
Company shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the
Securities Act, until (A) the third anniversary of the Issue
Date (subject to extension pursuant to Section 5 hereof) or
(B) if sooner, the date immediately following the date that
all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant thereto (the
"Effectiveness Period"); provided, however, that the
Effectiveness Period shall be extended to the extent
required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 and as
otherwise provided herein.
(b) No holder of Transfer Restricted Securities may include
any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and
until such holder furnishes to the Company in writing,
within 15 days after receipt of a request therefor, such
information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or
Prospectus or preliminary prospectus included therein. No
holder of Transfer Restricted Securities shall be entitled
to Additional Interest pursuant to Section 4 hereof unless
and until such holder shall have provided all such
reasonably requested information. Each holder of Transfer
Restricted Securities as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in
order to make the information previously furnished to the
Company by such holder not materially misleading.
4. Additional Interest
(a) The parties hereto agree that the holders of Transfer
Restricted Securities will suffer damages if the Issuer and
the Company fail to fulfill their obligations pursuant to
Section 2 or Section 3, as applicable, and that it would not
be feasible to ascertain the extent of such damages.
Accordingly, in the event that (i) the applicable
Registration Statement is not filed with the SEC on or prior
to the date specified herein for such filing, (ii) the
applicable Registration Statement has not been declared
effective by the SEC on or prior to the date specified
herein for such effectiveness after such obligation arises,
(iii) if the Exchange Offer is required to be Consummated
hereunder, the Issuer and the Company have not exchanged
Exchange Bonds for all bonds validly tendered and not
validly withdrawn in accordance with the terms of the
Exchange Offer by the Consummation Date or (iv) the
applicable Registration Statement is filed and declared
effective but shall thereafter cease to be effective without
being succeeded immediately by any additional Registration
Statement covering the Bonds, the Exchange Bonds or the
Private Exchange Bonds, as the case may be, which has been
filed and declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default"), the
interest in addition to the interest otherwise payable with
respect to the Transfer Restricted Securities subject to
such registration (the "Additional Interest") shall accrue
with respect to such Transfer Restricted Securities through
and including the date on which such Registration Default
shall cease to exist (and provided no other Registration
Default with respect to such Transfer Restricted Securities
shall then be continuing) at the rate of one-half of one
percent (0.50%) per annum, as though the interest rate
provided in such Transfer Restricted Securities had been
increased by one-half of one percent (0.50%) per annum.
Following the cure of a Registration Default, the accrual of
Additional Interest with respect to such Registration
Default will cease and upon the cure of all Registration
Defaults the obligation of the Issuer and the Company to pay
Additional Interest will cease; provided, however, if the
Registration Defaults are not cured within two years
following the Issue Date, the obligation of the Issuer and
the Company to pay Additional Interest shall become
permanent.
(b) The Issuer and the Company shall notify the Trustee and
paying agent under the Indenture (or the trustee and paying
agent under such other indenture under which the Transfer
Restricted Securities are issued) immediately upon the
happening of each and every Registration Default. The
Issuer and the Company shall pay the Additional Interest due
on the Transfer Restricted Securities by depositing with the
paying agent (which shall not be the Issuer or the Company
for these purposes) for the Transfer Restricted Securities,
in trust, for the benefit of the holders thereof, prior to
11:00 A.M. on the next interest payment date specified by
the Indenture (or such other indenture), sums sufficient to
pay the Additional Interest then due. The Additional
Interest due shall be payable on each interest payment date
specified by the Indenture (or such other indenture) to the
record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the
date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable
estimate of the damages that will be suffered by holders of
Transfer Restricted Securities by reason of the happening of
any Registration Default.
5. Registration Procedures
In connection with the registration obligations of the Issuer
and the Company hereunder, the Issuer and the Company shall
effect such registrations on the appropriate form available
for the sale of the Bonds, the Exchange Bonds or Private
Exchange Bonds, as applicable, to (i) in the case of the
Exchange Offer, permit the exchange of Exchange Bonds for
Bonds in the Exchange Offer and, if applicable, re-sales of
Exchange Bonds by Participating Broker-Dealers and (ii) in the
case of a Shelf Registration, permit the sale of the
applicable Transfer Restricted Securities in accordance with
the method or methods of disposition thereof specified by the
holders of such Transfer Restricted Securities, and pursuant
thereto the Issuer and the Company shall as expeditiously as
reasonably possible:
(a) in the case of a Shelf Registration, a reasonable
period of time prior to the initial filing of a Shelf
Registration Statement or Prospectus and a reasonable period
of time prior to the filing of any amendment or supplement
thereto (including any document that would be incorporated
or deemed to be incorporated therein by reference), furnish
to the holders of the Transfer Restricted Securities
included In such Shelf Registration Statement, their Special
Counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such holders,
their Special Counsel and such underwriters, if any, and
cause the officers and directors of the Issuer and the
Company, counsel to the Issuer and the Company and
independent certified public accountants to the Issuer and
the Company to respond to such reasonable inquiries as shall
be necessary, in the opinion of respective counsel to such
holders and such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act;
provided, however, that the Issuer and the Company shall not
be deemed to have kept a Shelf Registration Statement
effective during the applicable period if any of them
voluntarily takes or fails to take any reasonable action
that results in holders of the Transfer Restricted
Securities covered thereby not being able to sell such
Transfer Restricted Securities pursuant to federal
securities laws during that period (and the time period
during which such Shelf Registration Statement is required
to remain effective hereunder shall be extended by the
number of days during which such holders of Transfer
Restricted Securities are not able to sell such Transfer
Restricted Securities). The Issuer and the Company shall
not file any such Shelf Registration Statement or related
Prospectus or any amendments or supplements thereto to which
the holders of a majority in aggregate principal amount of
the Transfer Restricted Securities included in such Shelf
Registration Statement shall reasonably object on a timely
basis;
(b) prepare and file with the SEC such amendments,
including post-effective amendments, to each Registration
Statement as may be necessary to keep such Registration
Statement continuously effective for the applicable time
period required hereunder, cause the related Prospectus to
be supplemented by any Prospectus supplement required by
law, and as so supplemented to be filed pursuant to Rule
424; and comply with the provisions of the Securities Act
and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement during
such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus
as so supplemented;
(c) notify the holders of Transfer Restricted Securities to
be sold or, in the case of Transfer Restricted Securities
tendered for in an Exchange Offer, their Special Counsel and
the managing underwriters, if any, promptly, and (if
requested by any such person), confirm such notice in
writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be
filed, and (B) with respect to a Registration Statement or
any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other
federal or state governmental authority for amendments or
supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any
other governmental agency or any court of any stop order,
order or injunction suspending or enjoining the use of a
Prospectus or the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (iv)
of the receipt by the Issuer or the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Bonds, Exchange Bonds or Private Exchange Bonds for sale in
any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any
event or information becoming known that makes any statement
made in a Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that
requires the making of any changes in such Registration
Statement, Prospectus or documents so that it will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and
that in the case of a Prospectus, it will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
(d) use their best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or
suspending the use of a Prospectus or the effectiveness of a
Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any
of the Bonds, Exchange Bonds or Private Exchange Bonds for
sale in any jurisdiction, at the earliest practicable
moment, subject, however, to the proviso in Section 5(h);
(e) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof and if requested by the managing
underwriters, if any, or the holders of a majority in
aggregate principal amount of the Transfer Restricted
Securities being sold pursuant to such Shelf Registration
Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as
the managing underwriters, if any, and such holders
reasonably believe should be Included therein, and (ii) make
all required filings of such Prospectus supplement or such
post-effective amendment under the Securities Act as soon as
practicable after the Issuer or the Company has received
notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided,
however, that the Issuer and the Company shall not be
required to take any action pursuant to this Section 5(e)
that would, in the opinion of counsel for the Issuer and the
Company, violate applicable law;
(f) upon written request to the Issuer or the Company,
furnish to each holder of Bonds, Exchange Bonds or Private
Exchange Bonds to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and each
managing underwriter, if any, without charge, at least one
conformed copy of such Registration Statement and each
amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the
extent requested (including those previously furnished or
incorporated by reference) as soon as practicable after the
filing of such documents with the SEC;
(g) deliver to each holder of Bonds, Exchange Bonds or
Private Exchange Bonds to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel, and the
underwriters, if any, without charge, as many copies of the
Prospectus (including each form of prospectus) and each
amendment or supplement thereto as such persons reasonably
request; and the Issuer and the Company hereby consent to
the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Transfer
Restricted Securities and the underwriters, if any, in
connection with the offering and sale of the Transfer
Restricted Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) prior to any public offering of Bonds, Exchange Bonds
or Private Exchange Bonds, use their best efforts to
register or qualify or cooperate with the holders of Bonds,
Exchange Bonds or Private Exchange Bonds to be sold or
tendered for the underwriters, if any, and their respective
counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of
such Bonds, Exchange Bonds or Private Exchange Bonds for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such holder or
underwriter reasonably requests in writing; keep each such
registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is
required to be kept effective hereunder and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Bonds, Exchange
Bonds or Private Exchange Bonds covered by the applicable
Registration Statement; provided, however, that the Issuer
arid the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where they are
not then so qualified or (ii) take any action which would
subject them to general service of process or to taxation in
any jurisdiction where they are not so subject;
(i) in connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities, cooperate with
the holders thereof and the managing underwriters, if any,
to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The
Depository Trust Company and to enable such Transfer
Restricted Securities to be in such authorized denominations
and registered in such names as the managing underwriters,
if any, or such holders may request at least two Business
Days prior to any sale of Transfer Restricted Securities;
(j) upon the occurrence of any event contemplated by
Section 5(c)(v), as promptly as reasonably practicable,
prepare a supplement or amendment, including, if
appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other
required document so that, as thereafter delivered, such
Prospectus will not 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, in light of the circumstances under which they were
made, not misleading;
(k) prior to the effective date of the Exchange
Registration Statement, to provide a CUSIP number for the
Exchange Bonds (and Private Exchange Bonds if applicable);
(l) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof, enter into such agreements (including an
underwriting agreement in form, scope and substance as is
customary In underwritten offerings) and take all such other
reasonable actions in connection therewith (including those
reasonably requested by the managing underwriters, if any,
or the holders of a majority in aggregate principal amount
of the Transfer Restricted Securities being sold) in order
to expedite or facilitate the disposition of such Transfer
Restricted Securities, and, 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
Transfer Restricted Securities and the underwriters, if any,
with respect to the business of the Issuer, Company and its
subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Shelf
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference
therein, in each case, with respect to such matters as are
customarily addressed in representations and warranties made
by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions
of counsel to the Issuer and 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 Special Counsel to the holders of
the Transfer Restricted Securities being sold), addressed to
each selling holder of Transfer Restricted Securities and
each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
requested by such Special Counsel and underwriters; (iii)
use their best efforts to obtain customary "cold comfort"
letters and updates thereof from the independent certified
public accountants of the Issuer and 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 is, or is required to be,
included in the Shelf Registration Statement), addressed
(where reasonably possible) to each selling holder of
Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering
matters of the type customarily covered In "cold comfort"
levels in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less
favorable to the selling holders and the underwriters, if
any, than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to holders of a
majority in aggregate principal amount of Transfer
Restricted Securities covered by such Shelf Registration
Statement and the managing underwriters, if any); and (v)
deliver such documents and certificates as may be reasonably
requested by the holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being
sold, their Special Counsel and the managing underwriters,
if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i)
above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Issuer and the Company;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer
Restricted Securities being sold, any underwriter
participating in any such disposition of Transfer Restricted
Securities, and any attorney, consultant or accountant
retained by such selling holders or underwriter, at the
offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate
documents and properties of the Issuer, the Company and its
subsidiaries (including with respect to businesses and
assets acquired or to be acquired to the extent that such
information is available to the Issuer of the Company), and
cause the officers, directors, agents and employees of the
Issuer, the Company and its subsidiaries (including with
respect to businesses and assets acquired or to be acquired
to the extent that such information is available to the
Issuer or the Company) to supply all information in each
case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in
connection with such Shelf Registration; provided, however,
that such persons shall first agree in writing with the
Issuer and the Company that any information that is
reasonably and in good faith designated by the Issuer and
the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by
such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including
any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Shelf Registration
Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard
such information by such person or (iv) such information
becomes available to such person from a source other than
the Issuer, the Company and its subsidiaries and such source
is not bound by a confidentiality agreement;
(n) provide an indenture trustee for the Bonds and/or the
Exchange Bonds and Private Exchange Bonds, as the case may
be, and cause an indenture to be qualified under the TIA not
later than the effective date of the first Registration
Statement relating to the Bonds and/or the Exchange Bonds
and Private Exchange Bonds, as the case may be; and if such
indenture shall be the Indenture, in connection therewith,
cooperate with the Trustee and the holders of the Bonds
and/or the Exchange Bonds and Private Exchange Bonds, to
effect such changes to the Indenture as may be required for
the Indenture to be (or to remain) so qualified in
accordance with the terms of the TIA; and execute, and use
its best efforts to cause the Trustee to execute, all
customary documents as may be required to effect such
changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be (or to
remain) so qualified in a timely manner;
(o) comply with all applicable rules and regulations of the
SEC and make generally available to their security holders
earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158, no later than 45
days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to
underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the
first fiscal quarter after the effective date of a
Registration Statement, which statement shall cover said
period, consistent with the requirements of Rule 158; and
(p) cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of
such Transfer Restricted Securities and their respective
counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
The Issuer and the Company may require a holder of Transfer
Restricted Securities to be included in a Registration
Statement to furnish to the Issuer and the Company such
information regarding the distribution of such Transfer
Restricted Securities as is required by law to be disclosed
such Registration Statement and the Issuer and the Company may
exclude from such Registration Statement the Transfer
Restricted Securities of any holder who unreasonably fails to
furnish such information within a reasonable time after
receiving such request
If any such Registration Statement refers to any holder by
name or otherwise as the holder of any securities of an
Issuer, then such holder shall have the right to require
(i) the insertion therein of language, in form and substance
reasonably satisfactory to such holder, to the effect that the
holding by such holder of such securities is not to be
construed as a recommendation by such holder of the investment
quality of the securities covered thereby and that such
holding does not imply that such holder will assist in meeting
any future financial requirements of the Issuer or the
Company, or (ii) in the event that such reference to such
holder by name or otherwise is not required by the Securities
Act, the deletion of the reference to such holder in any
amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to
be required.
In the case of a Shelf Registration pursuant to Section 3
hereof, each holder of Transfer Restricted Securities agrees
by acquisition of such Transfer Restricted Securities that,
upon receipt of any notice from the Issuer and the Company of
the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder
will forthwith discontinue disposition of such Transfer
Restricted Securities covered by such Registration Statement
or Prospectus until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
5(j) hereof, or until it is advised in writing (the "Advice")
by the Issuer or the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such
Prospectus. If the Issuer or the Company shall give any such
notice, the Effectiveness Period shall be extended by the
number of days during such period from and including the date
of the giving of such notice to and including the date when
each holder of Transfer Restricted Securities covered by such
Registration Statement shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Section
5(j) hereof or (y) the Advice, and, in either case, has
received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in
such Prospectus.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer and the Company
shall be borne by the Issuer and the Company whether or not
any Registration Statement is filed or becomes effective and
whether or not any Bonds, Exchange Bonds or Private Exchange
Bonds are issued or sold pursuant to any Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc.
(the "NASD") and (B) in compliance with securities or Blue Sky
laws), (ii) printing expenses (including, without limitation,
expenses of printing Prospectuses), (iii) reasonable fees and
disbursements of counsel for the Issuer and the Company and
the Special Counsel, (iv) fees and disbursements of all
Independent certified public accountants referred to In
Section 2(e) and Section 5(1)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such
performance), (v) if required by applicable law, including the
rules of the NASD, the reasonable fees and expenses of any
"qualified independent underwriter" and its counsel and (vi)
fees and expenses of all other persons retained by the Issuer
and the Company. In addition, the Issuer and the Company
shall pay their internal expenses (including, without
limitation, all salaries and expenses of their respective
officers and employees performing legal or accounting duties),
the expense of any annual audit, and the fees and expenses
incurred in connection with the listing of the Bonds, Exchange
Bonds or Private Exchange Bonds to be registered on any
securities exchange. Notwithstanding the foregoing or
anything in this Agreement to the contrary, each holder of
Transfer Restricted Securities shall pay all underwriting
discounts and commissions of any underwriters or dealers with
respect to any Bonds, Exchange Bonds or Private Exchange Bonds
sold by it.
7. Indemnification
(a) The Issuer and the Company agree, jointly and
severally, to indemnify and hold harmless (i) the Initial
Purchaser, each holder of Bonds, Exchange Bonds and Private
Exchange Bonds and each Participating Broker-Dealer, (ii)
each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any
of the foregoing (any of the persons referred to in this
clause (ii) being hereinafter referred to as a ("controlling
person")) and (iii) the respective officers, directors,
partners, employees, representatives and agents of the
Initial Purchaser, each holder of Bonds, Exchange Bonds and
Private Exchange Bonds, each Participating Broker-Dealer and
any controlling person (any person referred to in clause
(i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses,
claims, damages, liabilities and judgments arising out of or
relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or in any amendment or
supplement thereto, or arising out of or relating to any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of
the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or
omission that is based upon information relating to any
Indemnified Person furnished in writing to the Issuer and
the Company by or on behalf of such Indemnified Person
expressly for use therein; provided, that the indemnity
agreement contained in this Section 7(a) with respect to any
preliminary prospectus or amended preliminary prospectus
shall not inure to the benefit of any Indemnified Person
from whom the person asserting any such loss, expense,
liability or claim purchased the securities which is the
subject thereof, if the Prospectus corrected any such
alleged untrue statement or omission and if such Indemnified
Person failed to send or give a copy of the Prospectus,
excluding any documents incorporated by reference, to such
person at or prior to the written confirmation of the sale
of securities to such person, provided that the Issuer and
the Company have delivered the Prospectus to the Initial
Purchaser in requisite quantity on a timely basis to permit
such delivery or sending.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or
any such Prospectus or preliminary prospectus or any
amendment or supplement thereto and with respect to which
indemnity may be sought against the Issuer or the Company
hereunder, such Indemnified Person shall promptly notify the
Issuer and the Company in writing and the Issuer and the
Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such
Indemnified Person and payment of all fees end expenses.
Any Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person, unless
(i) the employment of such counsel shall have been
specifically authorized in writing by the Issuer or the
Company, (ii) the Issuer or the Company shall have failed to
assume the defense and employ counsel or pay all such fees
and expenses or (iii) the named parties to any such action
(including any impleaded parties) include both such
Indemnified Person and the Issuer or the Company and such
Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it
which are different from or additional to those available to
the Issuer or the Company (in which case the Issuer and the
Company shall not have the right to direct the defense of
such action on behalf of such Indemnified Person, it being
understood, however, that the Issuer and the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). The
Issuer and the Company shall not be liable for any
settlement of any such action effected without their written
consent but if settled with the written consent of the
Issuer or the Company, the Issuer and the Company agree,
jointly and severally, to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by
reason of such settlement. Neither the Issuer nor the
Company shall, without the prior written consent of each
Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified
Person is a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of
such proceeding.
(c) In connection with any Registration Statement pursuant
to which a holder of Transfer Restricted Securities offers
or sells Transfer Restricted Securities, such holder agrees,
severally and not jointly, to indemnify and hold harmless
the Issuer, the Company, their respective directors and
officers and any person controlling the Issuer and the
Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Issuer and the Company to
each Indemnified Person but only with respect to information
relating to such holder furnished in writing by or on behalf
of such holder expressly for use in such Registration
Statement. In any such case in which any action shall be
brought against an Issuer, the Company, any director or
officer of the Issuer, the Company or any person controlling
the Issuer or the Company based on such Registration
Statement and in respect of which indemnity may be sought
against a holder of Transfer Restricted Securities, such
holder shall have the rights and duties given to the Issuer
and the Company (except that if the Issuer or the Company
shall have assumed the defense thereof, such holder shall
not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of such
holder), and the Issuer, the Company, their respective
directors and officers and any person controlling the Issuer
or the Company shall have the rights and duties given to the
Indemnified Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred
to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages liabilities and judgments
(i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party on the
one hand and the indemnified party on the other hand from
the offering of the Bonds, the Exchange Bonds or the Private
Exchange Bonds, as the case may be (it being expressly
understood and agreed that the relative benefits received by
the Issuer and the Company from the offering of the Bonds,
Exchange Bonds or Private Exchange Bonds, as the case may
be, shall be the amount of the net proceeds received by the
Issuer from the sale of the Bonds to the Initial Purchaser),
or (ii) if the allocation provided by clause (i) above 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 each indemnifying party on the one hand and the
indemnified party on the other hand in connection with the
statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative fault
of each indemnifying party on the one hand and the
indemnified party on the other hand shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
an indemnifying party or such indemnified party and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission
The Issuer, the Company and the Initial Purchaser agree that
it would not be just and equitable if contribution pursuant to
this Section 7(d) were determined by pro rata allocation (even
if the Indemnified Person were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, no
Indemnified Person shall be required to contribute any amount
in excess of the amount by which the net profits received by
it in connection with the sale of the Bonds, Exchange Bonds or
Private Exchange Bonds contemplated by this Agreement exceeds
the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Indemnified Person's
obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective amount of Bonds,
Exchange Bonds or Private Exchange Bonds included in any such
Registration Statement by each Indemnified Person and not
joint.
8. Rules 144 and 144A
Each of the Issuer and the Company shall use its best efforts
to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if
at any time it is not required to file such reports but in the
past had been required to or did file such reports, it will,
upon the request of any holder of Transfer Restricted
Securities, make available other information as required by,
and so long as necessary to permit sales of its Transfer
Restricted Securities pursuant to Rule 144A. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to
require the Issuer or the Company to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations
If any of the Transfer Restricted Securities 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 administer the offering will be selected by
the holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering,
subject to the consent of the Issuer and the Company (which
will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such Transfer
Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the
terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Issuer, the
Company or by a holder of Bonds, Exchange Bonds or Private
Exchange Bonds of any of its obligations under this
Agreement, each holder of Bonds, Exchange Bonds or Private
Exchange Bonds and the Issuer and the Company, in addition
to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Subject to
Section 4 hereof, the Issuer, the Company and each holder of
Bonds, Exchange Bonds and Private Exchange Bonds agree that
monetary damages would not be adequate compensation for any
loss incurred by reason of a breach of any of the provisions
of this Agreement and each hereby further agrees that, in
the event of any action for specific performance in respect
of such breach, it shall waive the defense that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Issuer and the Company
will not enter into any agreement with respect to securities
issued by either of them that is inconsistent with the
rights granted to the holders of Bonds, Exchange Bonds and
Private Exchange Bonds and Indemnified Persons in this
Agreement or otherwise conflicts with the provisions hereof.
Without the written consent of the holder of a majority in
aggregate principal amount of the outstanding Transfer
Restricted Securities, the Issuer and the Company shall not
grant to any person any rights which conflict with or are
inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Issuer and the
Company shall not grant to any of their security holders
(other than the holders of Transfer Restricted Securities in
such capacity) the right to include any of their securities
in any Registration Statement other than Transfer Restricted
Securities.
(d) Amendments and Waiver. 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, otherwise than with the prior written consent of the
holders of not less than a majority of the then outstanding
aggregate principal amount of Transfer Restricted
Securities; provided, however, that, for the purposes of
this Agreement, Transfer Restricted Securities that are
owned, directly or indirectly, by the Issuer, the Company or
any of their Affiliates are not deemed outstanding.
Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Transfer
Restricted Securities whose securities are being sold
pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other holders of
Transfer Restricted Securities may be given by holders of a
majority in aggregate principal amount of the Transfer
Restricted Securities being sold by such holders pursuant to
such Registration Statement; and provided, further, that the
provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the
foregoing, no amendment, modification, supplement, waiver or
comment with respect to Section 7 shall be made or given
otherwise than with the prior written consent of each
Indemnified Person affected thereby.
(e) Notices. All notices and other communications provided
for herein shall be made in writing by hand delivery, next
day air courier, certified first class mail, return receipt
requested, telex or telecopier:
(i) if to the Issuer or the Company, as provided in the
Purchase Agreement,
(ii) if to the Initial Purchaser, as provided in the
Purchase Agreement, or
(iii) if to any other person who Is then the registered
holder of Bonds, Exchange Bonds or Private Exchange
Bonds, to the address of such holder as it appears in the
register therefor of the Issuer.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one
Business Day after being timely delivered to a next-day air
courier, five Business Days afar being deposited in the
mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to
the benefit of each holder of Bonds, Exchange Bonds and
Private Exchange Bonds. The Issuer and the Company may not
assign any of their rights or obligations hereunder without
the prior written consent of each holder of Transfer
Restricted Securities and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of
an Issuer shall have any of the rights granted under this
Agreement until such person shall acknowledge its rights and
obligations hereunder by a signed written statement of such
person's acceptance of such rights and obligations.
(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) Governing Law; Submission to Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
THE ISSUER AND THE COMPANY HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY COMPETENT NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or
otherwise affect the meaning hereof. All references made in
this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly
stated otherwise.
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written
above.
PANDA FUNDING CORPORATION
By: __________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel
and Assistant Secretary
PANDA INTERFUNDING CORPORATION
By: __________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel
and Assistant Secretary
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________