EXHIBIT 4.7
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REGISTRATION RIGHTS AGREEMENT
by and between
CEDAR BRAKES II, L.L.C.
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
as Initial Purchaser
Dated as of December 7, 2001
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of December 7, 2001 by and between Cedar Brakes II, L.L.C.,
a Delaware limited liability company (the "Issuer"), and Credit Suisse First
Boston Corporation (the "Initial Purchaser"), who has agreed to purchase the
Issuer's 9.875% Series A Senior Secured Bonds due 2013 (the "Initial Bonds")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated December 7, 2001 (the "Purchase Agreement"), by and between the Issuer and
the Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Initial Bonds, the Issuer has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth in Section 6 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated as of December
12, 2001 between the Issuer and Bankers Trust Company, as Trustee (the
"Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Additional Interest: As defined in Section 5 hereof.
Additional Interest Rate: As defined in Section 5 hereof.
Affiliate: As defined in Rule 144 of the Act.
Agreement: As defined in the initial paragraph hereof.
Bonds: As defined in Section 3(c) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Bonds to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement as continuously
effective and the keeping open of the Exchange Offer for a period not less than
the minimum period required pursuant to Section 3(b) hereof and (c) the
delivery, by the Issuer to the Registrar under the Indenture, of Exchange Bonds
in the same aggregate principal amount as the aggregate principal amount of
Initial Bonds tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and
4(a)(2) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Bonds: The Issuer's 9.875% Series B Senior Secured
Bonds due 2013 to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) as contemplated by Section 4 hereof.
Exchange Offer: The offer made by the Issuer to the Holders of
the Initial Bonds with respect to the exchange and issuance by the Issuer of a
principal amount of Exchange Bonds (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Initial Bonds that are tendered by such Holders in connection with such
exchange and issuance.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Initial Bonds to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, to certain
institutional "accredited investors," as such term is defined in Rule 501(a)(1),
(2), (3) or (7) under the Act, and pursuant to Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a)(1)
hereof.
Holders: As defined in Section 2 hereof.
Indenture: As defined in the second paragraph hereof.
Initial Bonds: As defined in the initial paragraph hereof.
Initial Purchaser: As defined in the initial paragraph hereof.
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Issuer: As defined in the initial paragraph hereof.
Plan of Distribution: As described in Annex A hereof.
Private Exchange: As defined in Section 3(c) hereof.
Private Exchange Bonds: As defined in Section 3(c) hereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Issuer relating to (a) an offering of Exchange Bonds pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Rules: As defined in Section 6(c)(xxi) hereof.
Shelf Registration Statement: As defined in Section 4(a)
hereof.
Suspension Notice: As defined in Section 6(d) hereof.
Suspension Period: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 as in effect on the date
of the Indenture.
Transfer Restricted Securities: (a) Each Initial Bond, until
the earliest to occur of (i) (x) the date on which such Initial Bond is
exchanged in the Private Exchange
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for a Private Exchange Bond or (y) the date on which such Initial Bond is
exchanged in the Exchange Offer for an Exchange Bond which is entitled to be
resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (ii) the date on which such Initial Bond has
been disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Bonds or Private Exchange Bonds, as
applicable), or (iii) the date on which such Initial Bond is distributed to the
public pursuant to Rule 144 under the Act (and purchasers thereof have been
issued Exchange Bonds or Private Exchange Bonds, as applicable) and (b) each
Exchange Bond or Private Exchange Bond, as the case may be, until the date on
which such Exchange Bond or Private Exchange Bond, as the case may be, is
disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law or Commission policy (after the procedures set forth in
Section 6(a)(i) below have been complied with), the Issuer shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after the
Closing Date (such 90th day being the "Filing Deadline"), (ii) use commercially
reasonable efforts to cause such Exchange Offer Registration Statement to become
effective at the earliest possible time, but in no event later than 230 days
after the Closing Date (such 230th day being the "Effectiveness Deadline"), and
(iii) use commercially reasonable efforts to commence and Consummate the
Exchange Offer upon the effectiveness of such Exchange Offer Registration
Statement. The Exchange Offer shall be on the appropriate form permitting (x)
registration of the Exchange Bonds to be offered in exchange for the Initial
Bonds that are Transfer Restricted Securities and (y) resales of Exchange Bonds
by Broker-Dealers that tendered into the Exchange Offer Initial Bonds that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Initial Bonds acquired
directly from the Issuer or any of its Affiliates), as contemplated by Section
3(c) below.
(b) The Issuer shall use commercially reasonable efforts to
cause the Exchange Offer Registration Statement to be effective continuously,
and shall use commercially reasonable efforts to keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
that in no event shall such period be less
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than 30 days. The Issuer shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Bonds shall be included in the Exchange Offer Registration Statement.
The Issuer shall use commercially reasonable efforts to cause the Exchange Offer
to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 40 days
thereafter (such 40th day being the "Consummation Deadline").
(c) The Issuer shall include a "Plan of Distribution" section
which contains the information in Annex A hereto in the Prospectus contained in
the Exchange Offer Registration Statement and indicate therein that any
Broker-Dealer who holds Transfer Restricted Securities that were acquired for
the account of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Initial Bonds acquired directly from the
Issuer or any Affiliate of the Issuer) may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such "Plan of Distribution" section
shall also contain all other information with respect to such sales by such
Broker-Dealers that the Commission may require in order to permit such sales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Transfer Restricted Securities held by
any such Broker-Dealer, except to the extent required by the Commission as a
result of a change in law, policy, rules or regulations after the date of this
Agreement.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Bonds received by such Broker-Dealer in the Exchange Offer,
the Issuer shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Exchange Bonds by Broker-Dealers, the Issuer agrees to use commercially
reasonable efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the Consummation Deadline or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto. The Issuer shall provide sufficient copies of
the latest version of such Prospectus to such Broker-Dealers promptly upon
request, and in no event later than one day after such request, at any time
during such period.
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Issuer shall promptly commence the Registered
Exchange
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Offer, it being the objective of such Registered Exchange Offer to enable each
Holder of Transfer Restricted Securities electing to exchange the Initial Bonds
for Exchange Bonds (assuming that such Holder is not an Affiliate of the Issuer,
acquires the Exchange Bonds in the ordinary course of such Holder's business and
has no arrangements with any Person to participate in the distribution of the
Bonds and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange Bonds
from and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of the several
states of the United States.
If, upon consummation of the Registered Exchange Offer, the
Initial Purchaser holds Initial Bonds acquired by it as part of its initial
distribution, the Issuer, simultaneously with the delivery of the Exchange Bonds
pursuant to the Registered Exchange Offer, shall issue and deliver to the
Initial Purchaser upon the written request of the Initial Purchaser, in exchange
(the "Private Exchange") for the Initial Bonds held by the Initial Purchaser, a
like principal amount of debt securities of the Issuer issued under the
Indenture and identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the
several states of the United States) to the Initial Bonds (the "Private Exchange
Bonds"). The Initial Bonds, the Exchange Bonds and the Private Exchange Bonds
are herein collectively called the "Bonds."
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law or Commission policy (after the Issuer has complied
with the procedures set forth in Section 6(a)(i) below) or (ii) any Holder of
Transfer Restricted Securities shall notify the Issuer within 10 Business Days
following the Consummation Deadline that (A) such Holder was prohibited by law
or Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Bonds acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Initial
Bonds or Private Exchange Bonds not eligible for participation in the
Registration Exchange Offer, then the Issuer shall:
(1) cause to be filed, on or prior to 45 days after the
earlier of (i) the date on which the Issuer
determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Issuer
receives the notice specified in clause (a)(ii)
above, (such earlier date, the "Filing Deadline"), a
shelf registration statement pursuant to Rule 415
under the Act (which may be an amendment to the
Exchange Offer
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Registration Statement (the "Shelf Registration
Statement")), relating to all Transfer Restricted
Securities, and
(2) shall use commercially reasonable efforts to cause
such Shelf Registration Statement to become effective
on or prior to 230 days after the Filing Deadline for
the Shelf Registration Statement (such 230th day the
"Effectiveness Deadline").
(3) If, after the Issuer has filed an Exchange Offer
Registration Statement that satisfies the
requirements of Section 3(a) above, the Issuer is
required to file and make effective a Shelf
Registration Statement solely because the Exchange
Offer is not permitted under applicable federal law
(i.e., clause (a)(i) above), then the filing of the
Exchange Offer Registration Statement shall be deemed
to satisfy the requirements of clause (x) above;
provided that, in such event, the Issuer shall remain
obligated to meet the Effectiveness Deadline set
forth in clause (2).
(4) To the extent necessary to ensure that the Shelf
Registration Statement is available for sales of
Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the
other securities required to be registered therein
pursuant to Section 6(b)(ii) hereof, the Issuer shall
use commercially reasonable efforts to keep any Shelf
Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and
current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity, as
to all matters within the Issuer's control, with the
requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as
announced from time to time, for a period of at least
two years (as extended pursuant to Section 6(d))
following the Closing Date, or such shorter period as
will terminate when all Transfer Restricted
Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Issuer in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act 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
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to Section 5 hereof unless and until such Holder shall have provided all such
information, and no Holder shall be entitled to have the Bonds held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to such
Holder. Each selling Holder agrees to promptly furnish additional information
required to be disclosed in order to make the information previously furnished
to the Issuer by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES
If (a) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable Filing Deadline,
(b) any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline or (c) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
(each such event referred to in clauses (a) through (c), a "Registration
Default"), then the Issuer hereby agrees to pay additional interest ("Additional
Interest") with respect to the Bonds. Additional Interest shall accrue on the
Bonds over and above the interest set forth in the title of the Bonds from and
including the date on which any such Registration Default shall occur, but
excluding the date on which all such Registration Defaults have been cured, at a
rate of 0.50% per annum regardless of the number of Registration Defaults (the
"Additional Interest Rate"). Notwithstanding anything to the contrary set forth
herein, (i) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (a) above, (ii)
upon the effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (b) above or (iii)
upon Consummation of the Exchange Offer, in the case of (c) above, Additional
Interest payable with respect to the Transfer Restricted Securities as a result
of such clause (a), (b) or (c), as applicable, shall cease to accrue.
Any amounts of Additional Interest due pursuant to this
Section 5 shall be payable in cash on the regular Interest Payments Dates with
respect to the Bonds. The amount of Additional Interest shall be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Bonds and further multiplied by a fraction, the numerator of which is the
number of days such Additional Interest Rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months),
and the denominator of which is 360.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. (i) In connection
with the Exchange Offer or the Private Exchange, as the case may be, the Issuer
shall (A) comply with all applicable provisions of Section 6(c) below and (B)
use commercially reasonable
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efforts to effect such exchange and to permit the resale of Exchange Bonds or
the Private Exchange Bonds, as the case may be, by Broker-Dealers that tendered
in the Exchange Offer or the Private Exchange, as the case may be, Initial Bonds
that such Broker-Dealer acquired for its own account as a result of its
market-making activities or other trading activities (other than Initial Bonds
acquired directly from the Issuer or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof.
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Issuer raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuer hereby agrees
to seek a no-action letter or other favorable decision from
the Commission allowing the Issuer to Consummate an Exchange
Offer for such Transfer Restricted Securities. The Issuer
hereby agrees to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the
Issuer hereby agrees to take all such other actions as may be
requested by the Commission or otherwise required in
connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences
with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Issuer setting forth the
legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable)
by the Commission staff. At any point in the process, the
Issuer may, in lieu of continuing or pursuing a no-action
letter, file a Shelf Registration Statement.
(ii) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Issuer,
prior to the Consummation of the Exchange Offer, a written
representation to the Issuer (which may be contained in the
letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an
Affiliate of the Issuer, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a
distribution of the Exchange Bonds to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Bonds in its
ordinary course of business and (D) if such Holder is a
Broker-Dealer, that it will receive Exchange Bonds for its own
account in exchange for Initial Bonds that were acquired as a
result of market-making activities or other trading activities
and that it will be required to acknowledge that it will
deliver a prospectus in connection
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with any resale of such Exchange Bonds. As a condition to its
participation in the Exchange Offer, each Holder using the
Exchange Offer to participate in a distribution of the
Exchange Bonds shall acknowledge and agree that, if the
resales are of Exchange Bonds obtained by such Holder in
exchange for Initial Bonds acquired directly from the Issuer
or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must
be covered by an effective registration statement containing
the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuer shall:
(i) comply with all the provisions of Section 6(c)
below and use commercially reasonable efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method
or methods of distribution thereof (as indicated in the
information furnished to the Issuer pursuant to Section 4(b)
hereof), and pursuant thereto the Issuer will prepare and file
with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods
of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof and include the names
of the Holders who propose to sell Bonds pursuant to the Shelf
Registration Statement as selling securityholders.
(ii) issue, upon the request of any Holder or
purchaser of Initial Bonds or Private Exchange Bonds, as the
case may be, covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Bonds having an
aggregate principal amount equal to the aggregate principal
amount of Initial Bonds or Private Exchange Bonds, as the case
may be, sold pursuant to the Shelf Registration Statement and
surrendered to the Issuer for cancellation; the Issuer shall
register Exchange Bonds on the Shelf Registration Statement
for this purpose and issue the Exchange
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Bonds to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Issuer
shall:
(i) use commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by
this Agreement, the Issuer shall file promptly an appropriate
amendment to such Registration Statement curing such defect,
and, if Commission review is required, use commercially
reasonable efforts to cause such amendment to be declared
effective as soon as practicable.
(ii) (A) prepare and file with the Commission such
amendments and post-effective amendments to the applicable
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; (B) cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely manner;
and (C) comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise each Holder promptly and, if requested
by such Holder, confirm such advice in writing, (A) with
respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities
commission of the qualification of the
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Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the receipt by the Issuer or
its legal counsel of any notification with respect to the
suspension of the qualification of the Bonds for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (E) of the existence of any
fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws,
the Issuer shall use commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest
possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(v) furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement);
(vi) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
each Holder in connection with such exchange or sale, if any,
make the Issuer's representatives available for discussion of
such document and other customary due diligence matters,
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and include such information in such document prior to the
filing thereof as such Holders may reasonably request;
(vii) make available, at reasonable times, for
inspection by the Trustee and any attorney or accountant
retained by the Trustee, all financial and other records, and
pertinent corporate documents of the Issuer and cause the
Issuer's officers, directors and employees to supply all
information reasonably requested by the Trustee, attorney or
accountant in connection with such Registration Statement or
any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness; provided, that (A) the
information and inspection requests and due diligence
investigations made pursuant to this clause (vii) and clause
(vi) of this Section 6 shall be coordinated on behalf of the
Initial Purchaser, the Holders and on behalf of the other
parties, by one counsel designated by and on behalf of such
parties and (B) each Holder shall bear its expenses and the
expenses of its consultants and advisers (including, without
limitation, any attorney, accountant or other agent retained
by such Person) incurred pursuant to this clause (vii) and
clause (vi) of this Section 6;
(viii) if requested by the Initial Purchaser in
connection with such exchange or sale, (A) promptly include in
any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as the Initial Purchaser may reasonably request to
have included therein, including, without limitation, the
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities set forth in Annex A hereto;
and (B) make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Issuer is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such
exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated by reference therein);
(x) deliver to each Holder, without charge, as many
copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuer hereby consents,
subject to the provisions of this Agreement, to the use (in
accordance with applicable law) of the
13
Prospectus and any amendment or supplement thereto by each
selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus
or any amendment or supplement thereto;
(xi) upon the request of any Holder, (A) enter into
such customary agreements (including underwriting agreements)
and make such representations and warranties and take all such
other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement
contemplated by this Agreement as may be reasonably requested
by any Holder in connection with any sale or resale pursuant
to any applicable Registration Statement; and (B) in such
connection:
(1) upon request of any Holder, furnish (or in
the case of paragraphs (y) and (z), use
commercially reasonable efforts to cause to
be furnished) to each Holder, upon
Consummation of the Exchange Offer or upon
the effectiveness of the Shelf Registration
Statement, as the case may be:
(x) a certificate, dated such date,
signed on behalf of the Issuer by
the President or any Vice President
of the Issuer confirming, as of the
date thereof, the matters set forth
in Section 6(e) of the Purchase
Agreement and such other similar
matters as such Holders may
reasonably request;
(y) an opinion, dated the date of
Consummation of the Exchange Offer
or the date of effectiveness of the
Shelf Registration Statement, as
the case may be, of in-house
counsel for the Issuer (A)covering
matters similar - to those set
forth in Section 6(c) of the
Purchase Agreement and such other
matters as such Holder may
reasonably request, with similar
assumptions and exceptions and in
form and substance substantially
similar to that customarily
delivered in public offerings of
securities, and, in any event,
including a statement to the effect
that such counsel has participated
14
in conferences with officers and
other representatives of the Issuer
and with representatives of the
independent public accountants for
the Issuer, and has considered the
matters required to be stated
therein and the statements
contained therein, although such
counsel has not independently
verified the accuracy, completeness
or fairness of such statements; and
(B) that such counsel - advises
that, on the basis of the
foregoing, no facts came to such
counsel's attention that caused
such counsel to believe that the
applicable Registration Statement,
at the time such Registration
Statement or any post-effective
amendment thereto became effective,
and, in the case of the Exchange
Offer Registration Statement, as of
the date of Consummation of the
Exchange Offer, contained an untrue
statement of a material fact or
omitted to state a material fact
required to be stated therein or
necessary to make the statements
therein not misleading, or that the
Prospectus contained in such
Registration Statement as of its
date and, in the case of the
opinion dated the date of
Consummation of the Exchange Offer,
as of the date of Consummation,
contained an untrue statement of a
material fact or omitted to state a
material fact necessary in order to
make the statements therein, in
light of the circumstances under
which they were made, not
misleading; provided, that without
limiting the foregoing, such
counsel may state further that such
counsel assumes no responsibility
for, and has not independently
verified, the accuracy,
completeness or fairness of the
financial statements, notes and
schedules thereto, and other
financial data included in any
Registration Statement contemplated
by this Agreement or the related
Prospectus; and
15
(z) a customary comfort letter, dated
the date of Consummation of the
Exchange Offer, or as of the date
of effectiveness of the Shelf
Registration Statement, as the case
may be, from the Issuer's
independent accountants, in the
customary form and covering matters
of the type customarily covered in
comfort letters to underwriters in
connection with underwritten
offerings, and affirming the
matters set forth in the comfort
letters delivered pursuant to
Section 6(a) of the Purchase
Agreement; and
(2) deliver such other documents and
certificates as may be reasonably requested
by the selling Holders to evidence
compliance with the matters covered in
clause (1) above and with any customary
conditions contained in any agreement
entered into by the Issuer pursuant to this
clause (xi);
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and
their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the
selling Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided,
that (A) the Issuer shall not be required to -------- register
or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject
and (B) the Issuer shall not be obligated to pay for expenses
incurred pursuant to this subparagraph in excess of $5,000;
(xiii) in connection with any sale of Transfer
Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends, and to
register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may
request at least two Business Days prior to such sale of
Transfer Restricted Securities;
16
(xiv) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository
Trust Company;
(xv) otherwise use commercially reasonable efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the
effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xvi) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance
with the terms of the TIA;
(xvii) provide promptly to each Holder, upon request,
each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange
Act;
(xviii) if a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Initial
Bonds by Holders to the Issuer (or to such other Person as
directed by the Issuer) in exchange for the Exchange Bonds or
the Private Exchange Bonds, as the case may be, the Company
shall ▇▇▇▇, or caused to be marked, on the Initial Bonds so
exchanged that such Initial Bonds are being canceled in
exchange for the Exchange Bonds or the Private Exchange Bonds,
as the case may be, in no event shall the Initial Bonds be
marked as paid or otherwise satisfied;
(xix) cooperate with the Holders of the Bonds to
facilitate the timely transfer of Bonds to be sold pursuant to
any Registration Statement free of any restrictive legends
and, to the extent consistent with the terms of the Indenture,
facilitate timely preparation and delivery of certificates
representing the Bonds, in such denominations and registered
in such names as the Holders may request a reasonable period
of time prior to sales of the Bonds pursuant to such
Registration Statement;
17
(xx) use commercially reasonable efforts to confirm
that the ratings received for the Initial Bonds prior to their
initial sale will apply to the Bonds covered by a Registration
Statement;
(xxi) in the event that any Broker-Dealer shall
underwrite any Bonds or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Rules") of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Bonds or as an
underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, the Issuer will assist such
Broker-Dealer in complying with the requirements of such
Rules, including, without limitation, by (A) if such Rules,
including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement
relating to such Bonds, to exercise usual standards of due
diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Bonds, (B) indemnifying
any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 8
hereof and (C) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of the Rules;
and
(xxii) use commercially reasonable efforts to take
all other steps necessary to effect the registration of the
Bonds covered by a Registration Statement contemplated hereby.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) or any notice from the Issuer of the existence of any
fact of the kind described in Section 6(c)(iii)(D) or (E) hereof (in each case,
a "Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Issuer that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Any such period from the date of such Suspension Notice until the
Recommencement Date is referred to herein as a "Suspension Period." Upon issuing
a Suspension Notice, the Issuer shall promptly prepare and file such additional
or supplemental fillings to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Bonds or purchasers
of Bonds, the Prospectus will not contain an untrue
18
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. Each Holder receiving
a Suspension Notice hereby agrees that it will either (x) destroy any
Prospectuses, other than permanent file copies, then in such Holder's possession
which have been replaced by the Issuer with more recently dated Prospectuses or
(y) deliver to the Issuer (at the Issuer' expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date. There shall be no more than three
Suspension Periods in any 12-month period, the aggregate number of days of such
Suspension Periods shall not exceed 90 days in such 12-month period and no
Suspension Period shall exceed 60 days. The Issuer shall be deemed not to have
used commercially reasonable efforts to keep any Registration Statement
effective during the requisite period if it voluntarily takes any action (other
than an action permitted by this Section 6(d)) that would result in Holders of
Bonds covered thereby not being able to offer and sell such Bonds during that
period, unless such action is required by applicable law.
(e) Effectiveness of Registration Statement. Notwithstanding
anything to the contrary contained in this Agreement, the obligation of the
Issuer hereunder to maintain the effectiveness of any Registration Statement and
any related Prospectus may be suspended, without default or penalty to the
Issuer, for one or more periods of time as may be required with respect to such
Registration Statement if (i) the Management Committee of the Issuer shall have
determined that the offering and sales under the Registration Statement, the
filing of such Registration Statement or the maintenance of its effectiveness
would require disclosure of or would interfere in any material respect with any
material financing, acquisition, merger, offering or other transaction involving
the Issuer or would otherwise require disclosure of nonpublic information that
could materially and adversely affect the Issuer or (ii) the Issuer is required
by any state or federal securities laws to file an amendment or supplement to
such Registration Statement for the purpose of incorporating quarterly or annual
information, which is not automatically effective. Further, the Issuer shall be
deemed to have used commercially reasonable efforts to keep any Registration
Statement continuously effective if either (i) or (ii) above has occurred.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement will be borne by the Issuer, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing
19
fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Exchange Bonds and/or the Private
Exchange Bonds to be issued in the Exchange Offer and/or the Private Exchange
and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Issuer and the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Exchange Bonds on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the Issuer
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuer will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuer will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities who are
tendering Initial Bonds in the Exchange Offer and/or selling or reselling
Initial Bonds or Exchange Bonds pursuant to the "Plan of Distribution" contained
in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements, which fees
shall not exceed $25,000, of not more than one counsel, who shall be Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each
Holder, its directors, officers and each Person, if any, who controls such
Holder (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments (including without limitation, any reasonable legal or
other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Issuer to any Holder or any prospective purchaser of Exchange
Bonds or registered Initial Bonds, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar
20
as such losses, claims, damages, liabilities or judgments are caused by an
untrue statement or omission or alleged untrue statement or omission that is
based upon information relating to any of the Holders furnished in writing to
the Issuer by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Issuer and its
directors and officers, and each Person, if any, who controls the Issuer (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) to the
same extent as the foregoing indemnity from the Issuer set forth in Section 8(a)
above, but only with reference to information relating to such Holder furnished
in writing to the Issuer by such Holder expressly for use in any Registration
Statement.
(c) In case any action shall be commenced involving any Person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
Person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party 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 the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Issuer, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying
21
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than 20
Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (x) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (y) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, 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 or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuer, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Issuer, on the one hand, and of the Holder, 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 the Issuer, on the one hand, and
of the Holder, 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 or alleged omission to state a material fact relates to
information supplied by the Issuer, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuer and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party
22
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 incurred by such
indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no
Holder, its directors, its officers or any Person, if any, who controls such
Holder (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total received by such Holder with respect to
the sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities plus (ii) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Issuer agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Issuer (a) is not subject to Section 13 or 15(d) of the Exchange Act, to use
commercially reasonable efforts to make available, upon request of any Holder,
to such Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (b) is subject
to Section 13 or 15(d) of the Exchange Act, to use commercially reasonable
efforts to make all filings required thereby in a timely manner in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. 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 to be included in such offering.
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's Transfer Restricted
Securities on the
23
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Issuer acknowledges and agree that any
failure by the Issuer to comply with its obligations under Sections 3 and 4
hereof may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Issuer's obligations under
Sections 3 and 4 hereof. The Issuer further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders 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 Issuer's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuer has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding Transfer
Restricted Securities held by the Issuer or its Affiliates).
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
24
(i) If to a Holder, at the address set forth on
the records of the Registrar under the
Indenture, with a copy to the Registrar
under the Indenture; and
(ii) if to the Issuer:
Cedar Brakes II, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: (A) at the time delivered by hand, if personally delivered; (B)
five Business Days after being deposited in the mail, postage prepaid, if
mailed; (C) when receipt acknowledged, if telecopied; and (D) on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted 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, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
25
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
(l) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Issuer (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ (and any successor entity) as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to this
Agreement that may be instituted in any federal or state court in the State of
New York or brought under federal or state securities laws, and acknowledges
that CT Corporation System has accepted such designation, (ii) submits to the
nonexclusive jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon CT Corporation System and written
notice of said service to the Issuer shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Issuer further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect so
long as any of the Bonds shall be
26
outstanding. To the extent that the Issuer may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself or its property, it hereby irrevocably waives
such immunity in respect of this Agreement, to the fullest extent permitted by
law.
[The remainder of this page was left blank intentionally.]
27
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
CEDAR BRAKES II, L.L.C.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
28
ANNEX A
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Bonds for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Bonds. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Bonds received in exchange for Initial Bonds
where such Initial Bonds were acquired as a result of market-making activities
or other trading activities. The Issuer has agreed that, for a period of 180
days after the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 2001, all dealers effecting transactions in the
Exchange Bonds may be required to deliver a prospectus.(1)
The Issuer will not receive any proceeds from any sale of Exchange Bonds by
broker-dealers. Exchange Bonds received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Bonds or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Bonds. Any broker-dealer
that resells Exchange Bonds that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Bonds may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Bonds and any commission or concessions received by any such Persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Issuer will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Issuer has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Bonds) other
than commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Bonds (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
1