Exhibit 4(h)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated May 6, 2002, is
made between ONCOR ELECTRIC DELIVERY COMPANY (the "Company") and ▇▇▇▇▇▇ BROTHERS
INC., BARCLAYS CAPITAL INC., BNP PARIBAS SECURTIES CORP., BNY CAPITAL MARKETS,
INC., FIRST UNION SECURITIES, INC. and WESTDEUTSCHE LANDESBANK GIROZENTRALE
(collectively, the "Initial Purchasers," and each an "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated May 1, 2002
(the "Purchase Agreement"), between the Company, as issuer, and the Initial
Purchasers, which provides for, among other things, the several sales by the
Company to the Initial Purchasers of $700,000,000 principal amount of the
Company's 6.375% Senior Secured Notes due 2012 (the "2012 Notes") and
$500,000,000 principal amount of the Company's 7.000% Senior Secured Notes due
2032 (the "2032 Notes," and together with the 2012 Notes, 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 the Initial
Purchasers' 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.
"Additional Interest Rate" 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.
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"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; 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 2012 Notes" shall mean the 6.375% Senior Secured Notes due 2012
containing terms identical to the 2012 Notes (except that the Exchange 2012
Notes will not contain registration rights or terms with respect to transfer
restrictions under the Securities Act and will not provide for any Additional
Interest to be payable with respect thereto).
"Exchange 2032 Notes" shall mean the 7.000% Senior Secured Notes due 2032
containing terms identical to the 2032 Notes (except that the Exchange 2032
Notes will not contain registration rights or terms with respect to transfer
restrictions under the Securities Act and will not provide for any Additional
Interest to be payable with respect thereto).
"Exchange Notes" shall mean the Exchange 2012 Notes and the Exchange 2032
Notes.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange the Registrable Securities for a like principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (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.
"Holders" shall mean the Initial Purchasers, for so long as they own
beneficial interests in 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 relating to the Notes and the Exchange
Notes dated as of May 1, 2002 between the Company, as issuer, and The Bank of
New York, as Indenture Trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Indenture Trustee" shall mean The Bank of New York, and any successor
thereto, as trustee under the Indenture.
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"Initial Purchaser(s)" 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.
"NASD" shall mean National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"2012 Notes" shall have the meaning set forth in the preamble of this
Agreement.
"2032 Notes" shall have the meaning set forth in the preamble of 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
Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to the Notes shall have been declared effective under the
Securities Act and the Notes shall have been disposed of pursuant to such
Registration Statement, (ii) the 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) the Notes shall have ceased to be
outstanding, (iv) the Notes shall 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 Default" shall have the meaning set forth in Section 2(e)
hereof.
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"Registration Expenses" shall mean any and all expenses incident to the
performance of or the compliance by the Company with this Agreement, including,
without limitation: (i) all SEC or 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 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 Indenture
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 that 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 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.
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2. Registration Under the Securities Act.
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(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 270 days
after the Issue Date and (iii) promptly offer the Exchange Notes in exchange for
surrender of the Notes upon the effectiveness of the Exchange Offer Registration
Statement, and consummate the Exchange Offer within 315 days after the Issue
Date. Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it being understood that the
objective of such Exchange Offer is 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 Notes 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, received
before aforesaid time, 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
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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:
(i) accept for exchange all Notes or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Indenture Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Indenture Trustee to promptly authenticate
and deliver to the Depositary (or if, the Exchange Notes are in
certificated form, 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. 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, the SEC standard instructions for filing forms under the
Securities Act, if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
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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 applicable interpretations of
the staff of the SEC, (ii) for any other reason the Exchange Offer is not
consummated on or prior to 315 days after the Issue Date, (iii) any Initial
Purchaser so requests with respect to Notes not eligible to be exchanged for
Exchange Notes in the Exchange Offer, (iv) any Holder (other than a
Participating Broker-Dealer) is not permitted by applicable law or
interpretations of the staff of the SEC to participate in the Exchange Offer or,
in the case of any Holder (other than a Participating Broker-Dealer) that
participates in the Exchange Offer, such Holder does not receive freely
tradeable Exchange Notes on the date of the exchange and any such Holder so
requests, or (v) the Company so elects, the Company shall, for the benefit of
the Holders, promptly deliver to the Holders and the Indenture Trustee written
notice thereof and, at its cost, use its reasonable best efforts to have a Shelf
Registration Statement covering continuous resales of the Notes or the Exchange
Notes, as the case may be, declared effective by the SEC within the later of (i)
180 days after being required or requested to file a Shelf Registration
Statement and (ii) 270 days after the Issue Date. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration Statement 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
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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 it 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.
-------------------
The Company will pay Additional Interest on the Notes if:
(i) the Exchange Offer Registration Statement (or, if a change in law
or in applicable interpretations of the staff of the SEC does not permit
Oncor to effect an Exchange Offer, the Shelf Registration Statement) is not
declared effective by the SEC within 270 days after the Issue Date; or
(ii) the Exchange Offer is not consummated within 315 days after the
Issue Date (unless Oncor is not permitted to effect an Exchange Offer as
specified in clause (i) above); or
(iii) the Shelf Registration Statement (except as specified in clause
(i)) is not declared effective by the SEC within the later of (x) 180 days
after being requested to file a Shelf Registration Statement and (y) 270
days after the Issue Date; or
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(iv) (A) after the Exchange Offer Registration Statement is declared
effective, such Registration Statement thereafter ceases to be effective at
any time during the Exchange Period or the Applicable Period, as the case
may be, or (B) after the Shelf Registration Statement has been declared
effective, such Registration Statement ceases to be effective or usable in
connection with resales of Notes 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)
(each such event specified in (i) - (iv) of this Section 2(e), a
"Registration Default").
Additional Interest will accrue on the Notes and the Exchange Notes, as the case
may be, from and including the date on which any such Registration Default shall
occur to but excluding the date on which all such Registration Defaults have
been cured, or if earlier, the date on which all the Notes may first be resold
in reliance on Rule 144(k), at the rate of .50% per annum ("Additional Interest
Rate"); provided, however, that the Additional Interest Rate may not exceed in
the aggregate .50% per annum.
Any amounts of Additional Interest due pursuant to Section 2(e) above
will be payable in cash on the relevant payment dates for the payment of
interest on the Notes 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 obligations of the Company 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
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,
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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 advise 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, 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 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
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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 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, promptly notify each Holder of
Registrable Securities, or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriters, if any, 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, (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, if any, may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
11
(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)(iv), 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
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 Indenture 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, if required by the TIA, 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 Indenture 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 such Initial
Purchaser holds Registrable Securities acquired by such Initial Purchaser as
part of the Initial Purchasers' 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
12
managing underwriters (if any) 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 such
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) hereof
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 the Inspectors 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 the
Company's-designated Holders' counsel, at the expense of such parties as
described in Section 2(c) hereof. Records of the Company and its subsidiaries,
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
13
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 or any Inspector retained by it as a result of
such inspections shall be deemed confidential and shall not be used by it or any
Inspector retained 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 an earning statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) 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 statement
shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Indenture Trustee, obtain an opinion of counsel to the Company addressed to the
Indenture 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, (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) and (iii) the Indenture has been duly qualified under the
TIA, or no such qualification is required by the TIA;
(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, ▇▇▇▇, or cause to
be marked, on such Registrable Securities delivered by such Holders that such
Registrable Securities are being canceled 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;
14
(t) (A) in the case of the Exchange Offer Registration Statement (i) (a)
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 and (b)
include in such "Plan of Distribution" section 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-Dealer who has delivered to the Company the notice referred to in Section
3(e), without charge, as many copies of the 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 or 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 Securities 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 Participating Broker-Dealer making
the acknowledgement described in clause (x) and by delivering a Prospectus in
15
connection with the exchange of Registrable Securities, the Participating
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, deliver to
the Initial Purchasers or to another representative of the Participating
Broker-Dealers, if requested by the 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
officer's certificate containing certifications substantially similar to those
set forth in the certificate delivered pursuant to Section 8(c) 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. 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 not have any 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)(iv), 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
16
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 (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) as and when 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 and in conformity with information furnished
in writing to the Company by such Indemnified Party expressly for use in
connection with the preparation of a Registration Statement or the related
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 related Prospectus or any
amendment or supplement thereto, (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 related 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,
17
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) as and when 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 related 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, in light of the circumstances under
which they were made, not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Holder, expressly for use in connection with the
preparation of a Registration Statement or the related 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, 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 a 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 failure to notify such indemnifying party or parties
of any such action shall not relieve such indemnifying party or parties from any
liability hereunder to the extent such indemnifying party or parties is/are not
materially prejudiced as a result of such failure to notify and in any event
shall not relieve such indemnifying party or parties from any liability that 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 (including impleaded parties) 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 a single 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, whose
reasonable fees and expenses shall be paid by such indemnifying party, to
18
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 fees and expenses of more than one separate counsel (in addition
to local counsel) representing the indemnified parties who are parties to such
action). The Company and the Holders each agree that without the other party's
prior written consent, which consent shall not be unreasonably withheld, it will
not settle, compromise or consent to the entry of any judgment in any claim in
respect of which indemnification may be sought under the indemnification
provisions of this Agreement, unless such settlement, compromise or consent (i)
includes an unconditional release of such other party from all liability arising
out of such claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of such other party.
(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 (i) relative fault of each
indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which have resulted in such losses,
claims, damages, liabilities and expenses, the relative benefits received by
each indemnifying party on the one hand and the indemnified party on the other
hand from the offering of the Registrable Securities pursuant to this Agreement,
and 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. Notwithstanding the provisions of this Section 4, no Holder shall be
required to contribute in excess of the amount equal to the excess of (i) the
net proceeds received by such Holder from the sale of Registrable Securities by
it to Eligible Holders, over (ii) the amount of any damages which such Holder
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of each Holder
to contribute pursuant to this Section 4 are several and not joint and shall not
exceed the same proportion of all contributions of Holders required hereunder as
such Holder's Registrable Securities sold pursuant to the Registration Statement
is of the total amount of Registrable Securities sold pursuant to the
Registration Statement.
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
19
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. To the extent 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.
To the extent the Company is not 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 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
20
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 consent of such Holder. 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 the Indenture
Trustee, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be defective or 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 and shall not adversely affect the interests of the
Holders in any material respect, (ii) without the consent of any Holder of
Registrable Securities, 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 the Indenture Trustee 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 the Company and the Indenture Trustee.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Initial Purchasers, the
addresses 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 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 Indenture Trustee,
at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each Initial
Purchaser, 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
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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 Initial Purchaser shall, when it no
longer holds any beneficial interest in Notes or Exchange Notes, be a third
party beneficiary of the agreements made hereunder among 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 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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ONCOR ELECTRIC DELIVERY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Accepted and delivered as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
as Representative of the Initial
Purchasers