REGISTRATION RIGHTS AGREEMENT
Dated October 10, 1997
among
TEXAS UTILITIES COMPANY
and
▇▇▇▇▇▇ BROTHERS INC.,
CITICORP SECURITIES, INC.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 10, 1997 between TEXAS UTILITIES
COMPANY, a Texas corporation (the "Company"), and ▇▇▇▇▇▇ BROTHERS
INC. ("▇▇▇▇▇▇ Brothers"), CITICORP SECURITIES, INC. and ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated October 7, 1997 (the "Purchase Agreement"), among the
Company, as issuer of the 6.375% Series B Senior Notes 2004 (the
"Notes"), and the Initial Purchasers, which provides for, among
other things, the sale by the Company to the Initial Purchasers
of $175,000,000 principal amount of the 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 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:
"Additional Interest" shall have the meaning set forth in
-------------------
Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
------
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
-----------------
Section 3(t) hereof.
"Business Day" shall mean a day other than (i) a Saturday or
------------
a Sunday, (ii) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (iii) a day on which the Trustee's principal corporate
trust office is closed for business.
"Closing Date" shall mean the Closing Date as defined in the
------------
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
-------
to this Agreement and also includes the Company's successors and
permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any
----------
other depositary appointed by the Trust; provided, however, that
such depositary must have an address in the Borough of Manhattan,
in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
--------------------
Section 2(b) hereof.
"Eligible Holder" shall have the meaning set forth in
---------------
Section 2(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
------------
1934, as amended from time to time.
"Exchange Offer" shall mean the offer by the Company to the
--------------
Holders to exchange the Registrable Securities for a like
principal amount of Exchange Securities 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 (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.
"Exchange Period" shall have the meaning set forth in
---------------
Section 2(a) hereof.
"Exchange Notes" shall mean the 6.375% Series B Exchange
--------------
Senior Notes due 2004 containing terms identical to the Notes
(except that they will not contain terms with respect to the
transfer restrictions under the Securities Act and will not
provide for any Additional Interest to be payable with respect
thereto).
"Holder" shall mean the Initial Purchasers, for so long as
------
they own any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture.
"Indenture" shall mean the Indenture (for Unsecured Debt
---------
Securities Series B) relating to the Notes and the Exchange Notes
dated as of October 1, 1997 between the Company, as issuer, and
The Bank of New York, as the 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.
"Inspectors" shall have the meaning set forth in Section
----------
3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
----------
Notes.
"Majority Holders" shall mean the Holders of a majority of
----------------
the aggregate principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the preamble to
-----
this Agreement.
"Participating Broker-Dealer" shall have the meaning set
---------------------------
forth in Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation,
------
trust or unincorporated organization, limited liability 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
Securities 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.
"Purchase Agreement" shall have the meaning set forth in the
------------------
preamble of this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
-------
hereof.
"Registrable Securities" shall mean the Notes; provided,
----------------------
however, that the Notes shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Notes
shall have been declared effective under the Securities Act and
such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) such Notes shall have been sold to
the public pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act, (iii) such
Notes shall have ceased to be outstanding, (iv) such Notes have
been exchanged for Exchange Notes upon consummation of the
Exchange Offer and are thereafter freely tradable by the holder
thereof (other than an affiliate of the Company) or (v) two years
(or such shorter period as may hereafter be provided in Rule
144(k) under the Securities Act (or similar rule) have elapsed
since the date of original issuances of the Notes.
"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 SEC or
National Association of Securities Dealers, Inc. (the "NASD")
registration and filing fees; (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Notes or Registrable
Securities) and compliance with the rules of the NASD in an
amount not exceeding $15,000 in the aggregate, (iii) all expenses
of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement,
any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing
any Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency
fees, (v) the fees and disbursements of counsel for the Company,
of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, as counsel for the
Holders hereunder in connection with the Exchange Offer, and of
the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by
or incident to such performance and compliance, (vi) the fees and
expenses of the Trustee, and any paying agent, exchange agent or
custodian, (vii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities or
the Exchange Notes on any securities exchange or exchanges, and
(viii) the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration
Statement.
"Registration Statement" shall mean any registration
----------------------
statement of the Company which covers any of the Exchange Notes
or Registrable Securities 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.
"Rule 144(k) Period" shall mean the period of two years (or
------------------
such shorter period as may hereafter be provided in Rule 144(k)
under the Securities Act (or similar successor rule)) commencing
on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as
--------------
amended from time to time.
"Shelf Registration" shall mean a registration effected
------------------
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth
------------------------
in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
-----------------------------
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
----------------------------
registration statement of the Company pursuant to the provisions
of Section 2(b) hereof which covers all of the Registrable
Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
SEC, 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.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
---
from time to time.
"Trustee" shall mean The Bank of New York, and any successor
-------
thereto, as trustee under the Indenture.
2. Registration Under the Securities Act.
-------------------------------------
(a) Exchange Offer.
--------------
To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Company
shall, for the benefit of the Holders, at the Company's cost, (i)
cause to be filed with the SEC an Exchange Offer Registration
Statement on an appropriate form under the Securities Act
covering the Exchange Offer, (ii) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later
than the date which is 180 days after the Issue Date, and (iii)
use its reasonable best efforts to keep such Exchange Offer
Registration Statement effective for not less than 30 calendar
days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. 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 electing
to exchange Registrable Securities for a like principal amount of
Exchange Notes (assuming that such Holder is not an affiliate of
the Company within the meaning of Rule 405 under the Securities
Act and is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account, acquires
the Exchange Securities 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 Securities) (any Holder meeting all
such requirements, hereinafter an "Eligible Holder"), and to
transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the Securities Act
and under state securities or blue sky laws.
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 (together, the "Notice");
(ii) use its reasonable best efforts to keep the
Exchange Offer open for acceptance for a period of not less
than 30 days after the date Notice thereof is mailed to the
Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw, at any time prior to
the close of business, New York time, on the last Business
Day of the Exchange Period, any Notes tendered for exchange
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 Notes
delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Notes exchanged;
(v) notify each Holder by means of the Notice that any
Note not tendered by such Holder in the Exchange Offer will
remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement (except in the
case of the Initial Purchasers and Participating Broker-
Dealers as provided herein); and
(vi) 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:
accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange
Offer;
deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by the Company; and
issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, Exchange Notes equal in
principal amount to the principal amount of the Notes
surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the
Registered Exchange Offer will accrue from the last date on which
interest was paid on the Note surrendered in exchange therefor
or, if no interest has been paid on such Note, from the Issue
Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its
reasonable best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements
of the Securities Act, the Exchange Act and other applicable laws
in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange
Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and that each Holder
tendering Notes for exchange shall be an Eligible Holder. Each
Holder of Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Notes in the Exchange Offer
will be required to make certain customary representations in
connection therewith, including representations that (i) it is
not an affiliate of the Company, (ii) the Exchange Notes to be
received by it were acquired in the ordinary course of its
business and (iii) at the time 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.
Each Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes: (1) could
not under SEC policy as in effect on the date of this Agreement
rely on the position of the SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the SEC's
letter to Shearman & Sterling dated July 2, 1993, and similar no-
action letters (including any no-action letter obtained based on
the representations in clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the
Securities Act in connection with the secondary resale
transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the
selling security holder information required by Item 507 and 508,
as applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Notes acquired by
such Holder directly from the Company.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Exchange Notes held by
Participating Broker-Dealers, and the Company shall have no
further obligation to register the Registrable Securities (other
than pursuant to Section 2(b)(iii)) pursuant to Section 2(b) of
this Agreement.
(b) Shelf Registration.
------------------
In the event that (i) the Company is not permitted to
effect the Exchange Offer because of any change in law or in
currently prevailing interpretations of the staff of the SEC,
(ii) the Exchange Offer Registration Statement is not declared
effective within 180 days of the Issue Date, or (iii) (1) any
Initial Purchaser is not permitted, in the reasonable opinion of
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, pursuant to applicable law
or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the
Securities Act and applicable blue sky or state securities laws,
(2) such Initial Purchaser requests registration of Registrable
Securities held by such Initial Purchaser and (3) such Initial
Purchaser's request is made no later than the later of (A) the
date of filing of the Exchange Offer Registration Statement and
(B) 120 days following the Issue Date (any of the events
specified in (i) - (iii) being a "Shelf Registration Event" and
the date of occurrence thereof, the "Shelf Registration Event
Date"), the Company shall promptly deliver to the Holders and the
Trustee written notice thereof and, at its cost, file as promptly
as practicable after such Shelf Registration Event Date, and, in
any event, within 45 days after such Shelf Registration Event
Date (which shall be no earlier than 90 days after the Closing
Date) a Shelf Registration Statement providing for the sale by
the holders of all of the Registrable Securities, and shall use
its reasonable best efforts to have such Shelf Registration
Statement declared effective by the SEC as soon as practicable;
provided, however that if the Shelf Registration Event is
pursuant to clause (iii), the Company may register such
Registrable Securities together with the Exchange Offer
Registration Statement, filed pursuant to Section 2(a), and the
requirements as to timing applicable thereto. No Holder of
Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration pursuant to this
Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the
Company may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC
to be included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each
Holder as to which any Shelf Registration is being effected
agrees promptly to furnish to the Company all information with
respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective for
the Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof) or for such shorter period which
will terminate when all of the securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities
(the "Effectiveness Period"). The Company shall not permit any
securities other than Registrable Securities to be included in
the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a
part of the Shelf Registration Statement and notify each such
Holder when the Shelf Registration has become effective. The
Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by
the Securities Act or by any other rules and regulations
thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or
filed with the SEC.
(c) Expenses.
--------
The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b)
hereof. Except as provided herein, 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 Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement.
--------------------------------
An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof (or a combination of the two) will not be
deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the
SEC 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
Securities pursuant to such Registration Statement may legally
resume. The Company will be deemed not to have used its
reasonable 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 Securities covered
thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is
required by applicable law.
(e) Additional Interest.
-------------------
In the event that:
(i) notwithstanding that the Company has consummated or
will consummate an Exchange Offer, the Company is required
to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day
after the applicable required filing date, additional
interest shall accrue on the principal amount of the Notes
("Additional Interest") at a rate of 0.25% per annum; or
(ii) (A) the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 180th
day after the Issue Date or (B) whether or not the Company
has consummated or will consummate an Exchange Offer, the
Company is required to file a Shelf Registration Statement
and such Shelf Registration Statement is not declared
effective by the SEC on or prior to the 30th day after the
date such Shelf Registration Statement was required to be
filed, then, commencing on the 31st day after the applicable
required filing date, Additional Interest shall accrue on
the principal amount of the Notes at a rate of 0.25% per
annum; or
(iii) (A) the Company has not exchanged the Exchange
Notes for the Notes validly tendered, in accordance with the
terms of the Exchange Offer, on or prior to the 40th day
after the date on which the Exchange Offer Registration
Statement was declared effective or (B) the Shelf
Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective at any
time prior to the expiration of the Rule 144(k) Period
(other than after such time as all Notes have been disposed
of thereunder or otherwise cease to be Registrable
Securities), then Additional Interest shall accrue on the
principal amount of Notes, at a rate of 0.25% per annum,
commencing on the day such Shelf Registration Statement
ceases to be effective;
provided, however, that the Additional Interest rate on the Notes
may not exceed in the aggregate 0.25% per annum; provided
further, however, that (1) upon the filing of the Shelf
Registration Statement (in the case of clause (i) above), (2)
upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of
clause (ii) above), (3) upon the exchange of Exchange Notes for
all Notes tendered (in the case of clause (iii)(A) above), or
upon the effectiveness of the Shelf Registration Statement which
had ceased to remain effective (in the case of clause (iii) (B)
above), or (4) upon the expiration of two years (or such shorter
period as may hereafter be provided in Rule 144(k) under the
Securities Act (or similar rule)) commencing on the date of
original issuance of the Notes, Additional Interest on the Notes
as a result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to Section
2(e)(i), (ii) or (iii) above will be payable in cash on the
relevant payment dates for the payment of interest pursuant to
the Indenture.
(f) Specific Enforcement.
--------------------
Without limiting the remedies available to the Holders,
the Company acknowledges that any failure of the Company to
comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Holders
for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain
such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3. 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 SEC a Registration Statement
or Registration Statements as prescribed by Sections 2(a) and
2(b) hereof within (in the case of Section 2(b) hereof) the
relevant time period specified and on the appropriate form(s)
under the Securities Act, which form(s) (i) shall be selected by
the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities 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 all financial statements required by the SEC to be
filed therewith; and use its reasonable best efforts to cause
such Registration Statement(s) to become effective and remain
effective in accordance with Section 2 hereof; provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dealer,
as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed. The Company
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders
must be afforded an opportunity to review prior to the filing of
such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may
be; and cause each Prospectus to be supplemented, if so
determined by the Company or requested by the SEC, by any
required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration
Statement during the Effectiveness Period or the Applicable
Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders; (ii)
furnish to each Holder of Registrable Securities included in the
Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; (iii) consent to
the use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of Registrable Securities included
in the Shelf Registration Statement in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto; and (iv)
furnish to each Holder of Registrable Securities either a summary
of the terms of this Agreement or a copy of this Agreement;
(d) in the case of a Shelf Registration, cooperate with the
Trustee to register or qualify the Registrable Securities under
all applicable state securities or "blue sky" laws of such
jurisdictions by the time the applicable Registration Statement
is declared effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities
shall reasonably request in writing in advance of such date of
effectiveness; provided, however, that the Company and the Trust
shall not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii)
file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such
service of process or (iii) file annual reports or comply with
any other requirements deemed by the Company in its reasonable
judgment to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company has received
prior written notice that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Notes and are required to deliver Prospectuses, notify each
Holder of Registrable Securities, or such Participating Broker-
Dealers, as the case may be, their counsel and the managing
underwriters, if any, promptly and promptly confirm such notice
in writing (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 SEC or any state
securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the qualification of
the Registrable Securities or the Exchange Notes to be offered or
sold by any Participating Broker-Dealer in any jurisdiction
described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the
Company contained in any purchase agreement, securities sales
agreement or other similar agreement, if any cease to be true and
correct in all material respects, and (v) of the happening of any
event or the failure of any event to occur or the discovery of
any facts or otherwise, during the Effectiveness Period which
makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which causes
such Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and (vi) when the Company reasonably determines that
a post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of
such Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends and in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling
Holders or the underwriters may reasonably request at least two
Business Days prior to the closing of any sale of Registrable
Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
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;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated
by reference into a Registration Statement or a Prospectus after
the initial filing of a Registration Statement, provide a
reasonable number of copies of such document to the Holders; and
make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities or
the Initial Purchasers on behalf of such Holders available for
reasonable discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes, no later
than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Notes or
the Registrable Securities, as the case may be, in a form
eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or
Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute,
and use its reasonable 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
SEC to enable such documents to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary
in underwritten offerings and consistent with the terms of the
Purchase Agreement and take all such other appropriate actions as
are reasonably requested in order to expedite or facilitate the
registration or the disposition of such Registrable Securities,
and in such connection, whether or not an underwriting agreement
is entered into and whether or not the registration is with
respect to an underwritten offering, if requested by (x) any
Initial Purchaser, in the case where an Initial Purchaser holds
Registrable Securities acquired by it as part of its initial
distribution and (y) other Holders of Notes covered thereby: (i)
make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with
respect to the business of the Company and its subsidiaries as
then conducted and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel
to the Company and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to
the managing underwriters (if any) and the Holders of a majority
in principal amount of the Registrable Securities being sold,
addressed to each selling Holder and 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 underwriters (it being agreed that
the matters to be covered by such opinions may be subject to
customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings and such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing Standards
No. 72; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The above
shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder and as consistent
with the terms of the Purchase Agreement;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by
any selling Holder of such Registrable Securities being sold, or
each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and
its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause the officers, directors
and employees of the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any
such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of all such parties by
Company-designated Holders' counsel, at the expense of such
parties as described in Section 2(c) hereof. Records which the
Company determines, in good faith, to be confidential and any
records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, provided
that the Company shall be consulted prior to any such disclosure,
(ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or
is necessary in connection with any action, suit or proceeding or
(iii) the information in such Records has been made available to
the public. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to
agree in writing that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally
available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at
its expense to undertake appropriate action to prevent disclosure
of the Records deemed confidential;
(o) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be
applicable and make generally available to its security holders
earning statements satisfying the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act), with such adjustments as
are necessary to reflect the merger transactions in August 1997
involving the Company and the predecessors of the Company, no
later than 60 days after the end of any 12-month period (or 120
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 Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements
shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by
the Trustee, obtain an opinion of counsel to the Company
addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer and
which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Notes, and (ii)
each of the Exchange Notes constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms (with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company
(or to such other Person as directed by the Company), in exchange
for the Exchange Notes, the Company shall ▇▇▇▇, or cause to be
marked, on such Registrable Securities delivered by such Holders
that such Registrable Securities are being cancelled in exchange
for the Exchange Notes and in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable
Securities covered by a Registration Statement contemplated
hereby;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated
hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (1) indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer
Registration Statement that any broker or dealer registered under
the Exchange Act who holds Notes that are Registrable Securities
and that were acquired for its own account as a result of market-
making activities or other trading activities (other than
Registrable Securities acquired directly from the Company) (such
broker or dealer, a "Participating Broker-Dealer"), may exchange
such Notes pursuant to the Exchange Offer; however, such
Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Notes received
by such Participating Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery
by such Participating Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information
with respect to such resales by Participating Broker-Dealers that
the SEC may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such
Participating Broker-Dealer or disclose the amount of Exchange
Notes held by any such Participating Broker-Dealer except to the
extent required by the Commission as a result of a change in
policy announced after the date of this Agreement, (ii) furnish
to each Participating Broker who has delivered to the Company the
notice referred to in Section 3(e), 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 Participating
Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto by
any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment of supplement
thereto), (iii) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act for
such period of time as such Persons must comply with such
requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Notes; provided,
however, that such period shall not be required to exceed 90 days
(or such longer period if extended pursuant to the last sentence
of Section 3 hereof) (the "Applicable Period"), and (iv) 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 exchange offeree is a broker-dealer
holding Registrable Notes acquired for its own account
as a result of market-making activities or other
trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in
connection with any resale of Exchange Notes received
in respect of such Registrable Securities pursuant to
the Exchange Offer",
and (y) a statement to the effect that by a broker-
dealer making the acknowledgement described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company agrees to deliver to the Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if requested by any such Initial Purchasers or
such other representative of the Participating Broker-Dealers, on
behalf of the Participating Broker-Dealers upon consummation of
the Exchange Offer (i) an opinion of counsel in form and
substance reasonably satisfactory to the Initial Purchasers or
such other representative of the Participating Broker-Dealers,
covering the matters customarily covered in opinions requested in
connection with Exchange Offer Registration Statements and such
other matters as may be reasonably requested (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to
those set forth in certificates delivered pursuant to Section 8
of the Purchase Agreement and such additional certifications as
are customarily delivered in a public offering of debt securities
and (iii) as well as upon the effectiveness of the Exchange Offer
Registration Statement, a comfort letter, in each case, in
customary form as permitted by Statement on Auditing Standards
No. 72 and with such variations necessary to reflect the merger
transactions in August 1997 involving the Company and the
predecessors of the Company. Each of the foregoing shall be
consistent with the terms of the Purchase Agreement.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish to the Company such information regarding such seller as
may be required by the Staff of the SEC to be included in a
Registration Statement. The Company may exclude from such
registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a
reasonable time after receiving such request. The Company shall
have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such
information.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of
any notice from the Company of the happening of any event of the
kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed,
and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies in such
Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If the Company
shall give any such notice to suspend the disposition of
Registrable Securities or Exchange Notes, as the case may be,
pursuant to a Registration Statement, the Company shall file and
use its best efforts to have declared effective (if an amendment)
as soon as practicable an amendment or supplement to the
Registration Statement and shall extend the period during which
such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days in the period
from and including the date of the giving of such notice to and
including the date when the Company shall have made available to
the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. Indemnification.
---------------
(a) In connection with any Registration Statement, the
Company shall indemnify and hold harmless each Initial Purchaser,
each Holder, each underwriter who participates in an offering of
the Registrable Securities, each Participating Broker-Dealer, 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 (each an "Indemnified Party") from and against any
and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the
Securities Act or any other statute or common law and shall
reimburse each such Indemnified Party for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus or
Prospectus, or in a Registration Statement, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement
contained in this Section 4 as to any Indemnified Party shall not
apply to any such losses, claims, damages, liabilities, expenses
or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in
reliance upon information furnished in writing to the Company by
such Indemnified Party for use in connection with the preparation
of the Registration Statement or the Prospectus or any amendment
or supplement to either thereof, or arising out of, or based
upon, statements in or omissions from the part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee under the TIA; and
provided further, that the indemnity agreement contained in this
Section 4 with respect to the Prospectus (if the Company shall
have furnished any amendment or supplement thereto) shall not
inure to the benefit of any Indemnified Party on account of any
such losses, claims, damages, liabilities, expenses or actions
arising from the sale of Registrable Securities to any person if
a copy of the Prospectus (exclusive of any documents incorporated
by reference) shall not have been given or sent to such person by
or on behalf of such Indemnified Party with or prior to the
written confirmation of the sale involved unless, with respect to
the delivery of any amendment or supplement to the Prospectus,
the alleged omission or alleged untrue statement was not
corrected in such amendment or supplement at the time of such
written confirmation. The indemnity agreement of the Company
contained in this Section 4 shall remain operative and in full
force and effect regardless of any termination of this Agreement
or of any investigation made by or on behalf of any Indemnified
Party, and shall survive the registration of the Registrable
Securities.
(b) Each Holder shall indemnify, defend and hold harmless
the Company and any underwriter and other selling Holder, and
their respective officers and directors, and each person who
controls the Company or any underwriter or any other selling
Holder within the meaning of Section 15 of the Securities Act,
from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or the
Prospectus, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished in
writing to the Company by or on behalf of such Holder, for use in
connection with the preparation of the Registration Statement or
the Prospectus or any amendment or supplement to either thereof.
The indemnity agreement of the respective Holders contained in
this Section 4 shall remain operative and in full force and
effect regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, any
underwriter, or any other selling Holder, or their respective
directors or officers, or any such controlling person, and shall
survive the registration of the Registrable Securities; provided,
however, that, in the case of a Shelf Registration Statement, 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 Securities pursuant to such Shelf Registration
Statement.
(c) The Company and the Holders each shall, upon the
receipt of notice of the commencement of any action against it or
any person controlling it as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from any
liabilities which it or they may have to the indemnified party
otherwise than on account of such indemnity agreement. In case
such notice of any such action shall be so given, such
indemnifying party shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense of
such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall
elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and counsel
for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying party and
the indemnified party, the indemnified party or parties shall
have the right to select separate counsel, satisfactory to the
indemnifying party, to participate in the defense of such action
on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
(d) If the indemnification provided for in (a) or (b) above
shall be unenforceable under applicable law by an indemnified
party, each indemnifying party agrees to contribute to such
indemnified party with respect to any and all losses, claims,
damages, liabilities and expenses for which each such
indemnification provided for in (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to
reflect the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection with
the statement or omissions which have resulted in such losses,
claims, damages, liabilities and expenses, as well as any other
relevant equitable considerations; provided, however, that no
indemnified party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any indemnifying party not guilty
of such fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and each
of the Holders agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be
determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of
allocation which does not taken account of the equitable
consideration referred to above.
5. Participation in Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
-------------------------
Securities covered by the Shelf Registration Statement who desire
to do so may sell the securities covered by such Shelf
Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be
reasonably satisfactory to 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 and any Registrable Securities remain outstanding,
the Company will file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC
thereunder. If the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is
necessary to permit sales of their securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to
prospective purchasers as is necessary to permit sales of their
securities pursuant to Rule 144A under the Securities Act and it
will take such further action as any Holder of Registrable
Securities may reasonably request, and (c) 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 Securities without registration under the
Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be
amended from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, 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 inconsistent with the
rights granted to the Holders of Registrable Securities 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 of 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 Securities affected by such amendment, modification,
supplement, waiver or departure; provided no departure with
respect to the provisions of Section 4 hereof shall be effective
as against any Holder of Registrable Securities without the
unanimous consent of the Holders. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent
of any Holder of Registrable Securities, by written agreement
signed by the Company and ▇▇▇▇▇▇ Brothers Inc., to cure any
ambiguity, correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers
and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company and ▇▇▇▇▇▇
Brothers Inc. to the extent that any such amendment,
modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchasers, such
provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by
written agreement signed by ▇▇▇▇▇▇ Brothers Inc. and the Company.
(d) Notices. All notices and other communications provided
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for or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, telex, 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, the address set forth in the Purchase
Agreement; and (ii) if to the Company, initially at the Company's
address set forth in the Purchase Agreement 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 answered back, if
telexed; 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 the Initial Purchasers, including, without
limitation and without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities,
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 and such Person shall be entitled to receive the
benefits hereof.
(f) Third Party Beneficiary. Each of the Initial
-----------------------
Purchasers shall be a third party beneficiary of the agreements
made hereunder between the Company and the Holders 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
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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 DEEMED TO HAVE
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BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates.
------------------------------------------------
Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
TEXAS UTILITIES COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇. Illegible
----------------------------
CITICORP SECURITIES,
INC.
By: /s/ Illegible
----------------------------
MERRILL, LYNCH, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ Illegible
----------------------------