Exhibit 4(e)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated August 30,
2002, is made between ONCOR ELECTRIC DELIVERY COMPANY (the "Company") and
Barclays Capital Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Shank &
Co., L.L.C. and The ▇▇▇▇▇▇▇▇ Capital Group, L.P. (collectively, the "Initial
Purchasers," and each an "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated August 27,
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 $200,000,000 principal amount of the
Company's 5% Debentures due 2007 (the "2007 Debentures") and $800,000,000
principal amount of the Company's 7% Debentures due 2022 (the "2022 Debentures,"
and together with the 2007 Debentures, the "Debentures"). 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.
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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)
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hereof.
"Additional Interest Rate" shall have the meaning set forth in Section 2(e)
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hereof.
"Advice" shall have the meaning set forth in the last paragraph of Section
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3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
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hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday, (ii)
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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
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Agreement.
"Company" shall have the meaning set forth in the preamble to this
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Agreement.
"2007 Debentures" shall have the meaning set forth in the preamble of this
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Agreement.
"2022 Debentures" shall have the meaning set forth in the preamble of this
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Agreement.
"Debentures" shall have the meaning set forth in the preamble of this
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Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
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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)
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hereof.
"Eligible Holder" shall have the meaning set forth in Section 2(a) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Exchange 2007 Debentures" shall mean the 5% Debentures due 2007 containing
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terms identical to the 2007 Debentures (except that the Exchange 2007 Debentures
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 2022 Debentures" shall mean the 7% Debentures due 2022 containing
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terms identical to the 2022 Debentures (except that the Exchange 2022 Debentures
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 Debentures" shall mean the Exchange 2007 Debentures and the
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Exchange 2022 Debentures.
"Exchange Offer" shall mean the offer by the Company to the Holders to
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exchange the Registrable Securities for a like principal amount of Exchange
Debentures pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
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Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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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.
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"Holders" shall mean the Initial Purchasers, for so long as they own
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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 (For Unsecured Debt Securities)
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relating to the Debentures and the Exchange Debentures dated as of August 1,
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2002 between the Company, as issuer, and The Bank of New York, as Trustee, as
the same may be amended from time to time in accordance with the terms thereof.
"Initial Purchaser(s)" shall have the meaning set forth in the preamble
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of this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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"Issue Date" shall mean the date of original issuance of the Debentures.
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"Majority Holders" shall mean the Holders of a majority of the aggregate
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principal amount of outstanding Debentures.
"NASD" shall mean National Association of Securities Dealers, Inc. ----
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"Participating Broker-Dealer" shall have the meaning set forth in Section
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3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
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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
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this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
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"Registrable Securities" shall mean the Debentures; provided, however, that
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Debentures shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the Debentures shall have been declared effective
under the Securities Act and the Debentures shall have been disposed of pursuant
to such Registration Statement, (ii) the Debentures 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 Debentures shall have ceased to
be outstanding, (iv) the Debentures shall have been exchanged for Exchange
Debentures 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 Debentures.
"Registration Default" shall have the meaning set forth in Section 2(e)
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hereof.
"Registration Expenses" shall mean any and all expenses incident to the
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performance of or the compliance by the Company with this Agreement, including,
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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 Debentures 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 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 Debentures 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
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Company that covers any of the Exchange Debentures 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
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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.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
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2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
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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
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time.
"Trustee" shall mean The Bank of New York, and any successor thereto, as
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trustee under the Indenture.
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2. Registration Under the Securities Act.
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(a) Exchange Offer.
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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 Debentures in
exchange for surrender of the Debentures 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 Debentures (of the respective series) (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 Debentures
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 Debentures) (any Holder meeting all such
requirements, hereinafter an "Eligible Holder"), and to transfer such Exchange
Debentures 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 Debentures 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 Debentures delivered for exchange, and
a statement that such Holder is withdrawing his election to have such
Debentures exchanged;
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(v) notify each Holder by means of the Notice that any Debenture not
tendered by such Holder in the Exchange Offer will remain outstanding
and continue to accrue interest, but will not retain any rights under
this Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Debentures or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Debentures or portions thereof so accepted for exchange
by the Company; and
(iii) issue, and cause the Trustee to promptly authenticate and
deliver to the Depositary (or if, the Exchange Debentures are in
certificated form, each Holder), Exchange Debentures of the series and
equal in principal amount to the respective series and principal amount of
the Debentures surrendered by such Holder.
Interest on each Exchange Debenture issued pursuant to the Registered
Exchange Offer will accrue from the last date on which interest was paid on the
Debenture surrendered in exchange therefor or, if no interest has been paid on
such Debenture, 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 Debentures for exchange
shall be an Eligible Holder. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Debentures 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 Debentures 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 Debentures. 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
Debentures: (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 Debentures obtained by
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such Holder in exchange for Debentures acquired by such Holder directly from the
Company.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Exchange
Debentures 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.
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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 Debentures not eligible to be exchanged
for Exchange Debentures 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 Debentures 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 Trustee written notice
thereof and, at its cost, use its reasonable best efforts to have a Shelf
Registration Statement covering continuous resales of the Debentures or the
Exchange Debentures, 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,
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regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses.
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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.
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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.
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The Company will pay Additional Interest on the Debentures 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 Debentures at any time prior to the expiration
of the Rule 144(k) Period (other than after such time as all Debentures
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 Debentures and the Exchange Debentures,
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 Debentures
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 Debentures pursuant to the Indenture.
(f) Specific Enforcement.
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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.
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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;
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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 Debentures, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the Registrable
Securities and each such Participating Broker-Dealer, as the case may be,
covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. The Company shall not
file any Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be, and cause each Prospectus to be supplemented, if so
determined by the Company or requested by the SEC, by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and 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
Debentures 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 Debentures 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 each series of Exchange Debentures, no
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Debentures 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 Debentures or
Registrable Securities, as the case may be, and effect such changes to such
documents as may be required for them to be so qualified in accordance with the
terms of the TIA and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and consistent with the terms of the Purchase Agreement and take all such other
appropriate actions as are reasonably requested in order to expedite or
facilitate the registration or the disposition of such Registrable Securities,
and in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is with respect to an underwritten offering,
if requested by (x) any Initial Purchaser, in the case where such Initial
Purchaser holds Registrable Securities acquired by such Initial Purchaser as
part of the Initial Purchasers' initial distribution and (y) other Holders of
Debentures covered thereby: (i) make such representations and warranties to
12
Holders of such Registrable Securities and the underwriters (if any), with
respect to the business of the Company and its subsidiaries as then conducted
and the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in principal amount of the Registrable Securities
being sold, addressed to each selling Holder and the underwriters (if any)
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such opinions
may be subject to customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters (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 Debentures
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
13
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration Statement,
provided that the Company shall be consulted prior to any such disclosure, (ii)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) the information in such Records has been
made available to the public. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to agree in writing
that information obtained by it 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
Trustee, obtain an opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Securities participating in the
Exchange Offer and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Debentures, (ii) each of the
Exchange Debentures 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 Debentures, ▇▇▇▇, or
cause to be marked, on such Registrable Securities delivered by such Holders
that such Registrable Securities are being cancelled in exchange for the
Exchange Debentures, 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 Debentures 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 Debentures 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 Debentures 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 Debentures held by any such Participating Broker-Dealer
except to the extent required by the SEC 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 Debentures 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 Debentures; 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 related letter of transmittal 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 Debentures received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
15
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
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 Debentures 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
Debentures, 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 Debentures, as the case may be, pursuant to a
Registration Statement, the Company shall file and use its best efforts to have
16
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company shall have made
available to the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. Indemnification.
---------------
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, each
underwriter who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act (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.
17
(b) Each Holder shall indemnify, defend and hold harmless the Company
and any underwriter and other selling Holder, and their respective officers and
directors, and each person who controls the Company or any underwriter or any
other selling Holder within the meaning of Section 15 of the Securities Act,
from and against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act or any other statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) 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
18
indemnifying party, whose reasonable fees and expenses shall be paid by such
indemnifying party, to participate in the defense of such action on behalf of
such indemnified party or parties (it being understood, however, that the
indemnifying party shall not be liable for the 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.
19
5. Participation in Underwritten Registrations.
-------------------------------------------
No Holder may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities
on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. Selection of Underwriters.
-------------------------
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell the securities covered
by such Shelf Registration in an underwritten offering. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. 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
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may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure; provided no departure with respect to the provisions of
Section 4 hereof shall be effective as against any Holder of Registrable
Securities without the 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
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 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 Trustee.
(d) Notices. All notices and other communications provided for or
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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 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
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Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each Initial Purchaser shall, when it no
-----------------------
longer holds any beneficial interest in Debentures or Exchange Debentures,
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
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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
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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: Treasurer and Assistant Secretary
Accepted and delivered as of
the date first above written:
BARCLAYS CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
as Representative of the Initial
Purchasers
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