Exhibit 4.11
THE ▇▇▇▇▇▇▇ WORKS CAPITAL TRUST I
The ▇▇▇▇▇▇▇ Works
5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
REGISTRATION RIGHTS AGREEMENT
November 22, 2005
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
UBS Securities LLC
as Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The ▇▇▇▇▇▇▇ Works Capital Trust I, a statutory trust formed under the
laws of the State of Delaware (the "Trust"), proposes to issue and sell to
certain purchasers (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, its 5.902% Fixed Rate/Floating
Rate Enhanced Trust Preferred Securities (the "Preferred Securities"), to be
guaranteed by The ▇▇▇▇▇▇▇ Works, a corporation organized under the laws of the
State of Connecticut (the "Guarantor"), upon the terms set forth in the Purchase
Agreement among the Guarantor, the Trust and the Representatives dated November
15, 2005 (the "Purchase Agreement") relating to the initial purchase (the
"Initial Purchase") of the Preferred Securities. To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition to
your obligations thereunder, the Trust and the Guarantor agree with you for your
benefit and the benefit of the Holders from time to time, including the Initial
Purchasers, as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York, New York.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Debentures" shall mean the Guarantor's 5.902% Fixed Rate/Floating Rate
Junior Subordinated Debt Securities due 2045.
"Deferral Period" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Guarantor and the Trust on an appropriate form under the Act
with respect to the Registered Exchange Offer, and all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Guarantor or the Trust or any of their Affiliates) for New Securities.
"Final Memorandum" shall mean the offering memorandum, dated November
15, 2005, relating to the Securities, including any and all exhibits thereto and
any information incorporated by reference therein as of such date.
"Guarantee" shall mean the Guarantor's guarantee of the Securities, as
set forth in the Guarantee Agreement.
"Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
November 22, 2005, between the Guarantor and HSBC Bank USA, National
Association, as Guarantee Trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Holders" shall mean the holders of the Securities (including the
Initial Purchasers).
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"Indenture" shall mean the Indenture, dated as of November 22, 2005,
between the Guarantor and HSBC Bank USA, National Association, as trustee, as
supplemented by the First supplemental Indenture thereto, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Purchase" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate liquidation amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an Underwritten Offering, if
any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"New Debentures" shall mean debt securities of the Guarantor identical
in all material respects to the Debentures (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Indenture.
"New Guarantee" shall mean the Guarantor's guarantee of the New
Securities under the Guarantee.
"New Securities" shall mean preferred securities of the Trust identical
in all material respects to the Preferred Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Trust Agreement, provided that if the Trust is dissolved and Debentures
distributed to the holders of the Preferred Securities, in accordance with the
terms of the Trust Agreement, "New Securities" shall mean the New Debentures.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, together with the Debentures or New Debentures and
Guarantee or New Guarantee corresponding thereto, and all amendments and
supplements thereto, including any and all exhibits thereto and any information
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer by the Trust
and the Guarantor for the Trust to issue and deliver to the Holders of the
Securities that are not
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prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate liquidation amount of
the New Securities, which shall be guaranteed by the New Guarantee and in
respect of which the Trust shall hold a like aggregate principal amount of New
Debentures.
"Registrable Securities" shall mean (i) each Security until the
earliest date that (A) such Security has been registered under a Registration
Statement and disposed of under such Registration Statement, (B) such Security
has been distributed to the public pursuant to Rule 144 under the Act or (C)
such Security is eligible to be sold without volume or manner of sale
limitations pursuant to paragraph (k) of rule 144 under the Act or (ii) any New
Security, the resale of which by the holders thereof requires compliance with
the prospectus delivery requirements of the Act.
"Registration Default Damages" shall have the meaning set forth in
Section 8 hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any 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.
"Securities" shall mean the Preferred Securities, provided that if the
Trust is dissolved and Debentures distributed to the Holders of such Preferred
Securities in accordance with the terms of the Trust Agreement, the term
"Securities" shall refer to the Debentures.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Guarantor and the Trust pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, 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.
"Trust Agreement" shall mean the Amended and Restated Declaration of
Trust, dated as of November 22, 2005, relating to the issuance of the Securities
and the common securities of the Trust, as the same may be amended from time to
time in accordance with the terms thereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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"Trustee" shall mean the trustee with respect to the Debentures under
the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an Underwritten Offering thereof under a Shelf Registration Statement.
"Underwritten Offering" shall mean any offering of Securities under a
Shelf Registration Statement, in connection with which the Guarantor and the
Trust, in their sole discretion, have agreed in writing to participate in an
underwriting arrangement.
2. Registered Exchange Offer. (a) The Guarantor and the Trust shall
prepare and, not later than 210 days following the Closing Date, shall file with
the Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Guarantor and the Trust shall use their best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 300 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Guarantor and the Trust shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Guarantor or the Trust, acquires the
New Securities in the ordinary course of such Holder's business, has no
arrangements with any person to participate in the distribution of the New
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Guarantor and
the Trust shall:
(i) mail to each registered Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents and
provide to all nominees (including the Depositary Trust Company) such
number of copies thereof as they request in order to deliver the same
to beneficial holders;
(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days after the date notice thereof is mailed to the
Holders (or, in each case, longer if required by applicable law);
(iii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and
amended as required, under the Act to ensure (subject to Section 4(k)
hereof) that it is available for sales of New Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
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(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Property Trustee or an Affiliate thereof;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission
(A) stating that the Guarantor and the Trust are conducting the
Registered Exchange Offer in reliance on the position of the Commission
in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991) and ▇▇▇▇▇ &
Wood LLP (pub. avail. February 7, 1997); and (B) including a
representation that neither the Guarantor nor the Trust has entered
into any arrangement or understanding with any person to distribute the
New Securities to be received in the Registered Exchange Offer and
that, to the best of the Guarantor's and the Trust's information and
belief, each Holder participating in the Registered Exchange Offer is
acquiring the New Securities in the ordinary course of business and has
no arrangement or understanding with any person to participate in the
distribution of the New Securities; and
(vii) comply in all respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Guarantor and the Trust shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Property Trustee for cancellation in
accordance with Section 4(s) all Securities so accepted for exchange;
(iii) cause the Property Trustee promptly to authenticate and
deliver to each Holder of Securities a liquidation amount of New
Securities equal to the liquidation amount of the Securities of such
Holder so accepted for exchange;
(iv) deliver to the Trustee for cancellation Debentures in an
aggregate principal amount equal to the aggregate liquidation amount of
Securities cancelled in accordance with clause (ii) above; and
(v) cause the Indenture Trustee to promptly authenticate and
deliver to the Property Trustee a principal amount of New Debentures
equal to such liquidation amount of the Securities accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New
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Securities (x) could not under Commission policy as in effect on the date of
this Agreement rely on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub.
avail. June 5, 1991), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters (including, ▇▇▇▇▇ &
▇▇▇▇ LLP (pub. avail. February 7, 1997)); and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection with
any secondary resale transaction, which must be covered by an effective
registration statement, with a Prospectus or prospectus supplement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of New Securities
obtained by such Holder in exchange for Securities acquired by such Holder
directly from the Guarantor or the Trust or one of their respective Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Guarantor and the Trust that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities or
the New Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Guarantor or the
Trust; and
(iv) if such Holder is a broker-dealer, that it will receive
New Securities for its own account in exchange for the Securities that
were acquired as a result of marked-making activities or other trading
activities and that it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such New
Securities.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Guarantor and the Trust shall issue and deliver to
such Initial Purchaser or the person purchasing New Securities registered under
a Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like principal amount of
New Securities. The Guarantor and the Trust shall use their best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Guarantor
determines upon advice of its outside counsel that it or the Trust is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof; (ii) for any other reason the Registered Exchange Offer is not
consummated within 300 days of the date hereof; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be exchanged for
New Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer, provided that such
request shall be made to the Guarantor and the Trust in writing prior to
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the 20th day following the consummation of the Registered Exchange Offer; (iv)
any Holder (other than an Initial Purchaser) notifies the guarantor and the
Trust in writing prior to the 20th day following consummation of the Registered
Exchange Offer that is not eligible to participate in the Registered Exchange
Offer; or (v) in the case of any Initial Purchaser that participates in the
Registered Exchange Offer or acquires New Securities pursuant to Section 2(f)
hereof, such Initial Purchaser notifies the Guarantor and the Trust in writing
prior to the 20th day following consummation of the Registered Exchange Offer
that it has not received freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely tradeable"; and
(y) the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of New Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making activities or
other trading activities shall not result in such New Securities being not
"freely tradeable"), the Guarantor and the Trust shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Guarantor and the Trust shall as promptly as practicable
(but in no event more than 90 days after so required or requested pursuant to
this Section 3), use their reasonable best efforts to file with the Commission
and shall use their reasonable best efforts to cause to be declared effective
under the Act, within 180 days after so required or requested, a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, together with the Debentures or New Debentures
underlying such Securities or New Securities and the Guarantee or New Guarantee
of the Securities or New Securities, by the Holders of the Securities or the New
Securities from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and provided further,
that with respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the Guarantor
and the Trust may, if permitted by then-current rules or regulations, or
then-current interpretations by the Commission's staff, file a post-effective
amendment or prospectus supplement to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended or supplemented, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Guarantor and the Trust shall use their reasonable
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for
a period the "Shelf Registration Period") from the date the Shelf
Registration Statement is declared effective by the Commission until
the earlier of (A) the second anniversary after the Closing Date or (B)
the date upon which no Registrable Securities are outstanding. Both the
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Guarantor and the Trust shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if either voluntarily
takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities at any time
during the Shelf Registration Period, unless such action is (x)
required by applicable law or (y) otherwise undertaken by the Guarantor
or the Trust in good faith and for valid business reasons (not
including avoidance of the Guarantor and the Trust's obligations
hereunder), including the acquisition or divestiture of assets, and the
Guarantor and the Trust promptly thereafter comply with the
requirements of Section 4(k) hereof, if applicable.
(iii) The Guarantor and the Trust shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act; and (B)
not to contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Guarantor and the Trust shall:
(i) furnish to each of the Representatives and to one counsel
for the Initial Purchasers, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein, and shall give due consideration to such
comments as the Representatives propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement or on the
cover page of the Prospectus included therein, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer or, in each such case, substantially similar
information;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
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(iv) in the case of a Shelf Registration Statement, include
therein or in a related prospectus supplement the names of the Holders
known to the Guarantor that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Guarantor and the Trust shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Guarantor on behalf of itself and the Trust, shall advise the
Representatives, the Holders of Securities covered by any Shelf Registration
Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Guarantor a telephone or facsimile
number and address for notices, and, if requested by any Representative or any
such Holder or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii) through (v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Guarantor and the
Trust shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Guarantor or the Trust of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and (B)
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading(.)
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(d) The Guarantor and the Trust shall use their reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest practicable time.
(e) The Guarantor and the Trust shall furnish to each Holder of
Securities covered by any Shelf Registration Statement that so requests, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Guarantor and the Trust shall, during the Shelf Registration
Period, deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including the
Preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. The
Guarantor and the Trust each consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement, subject to Section 4(k)(ii) hereof.
(g) The Guarantor and the Trust shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Guarantor and the Trust shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such person may
reasonably request. The Guarantor and the Trust each consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the
offering and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Guarantor and the Trust
shall arrange, if necessary, for the qualification of the Securities or the New
Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request in writing and shall maintain such qualification in effect so
long as required to enable the offer and sale in such jurisdictions of the
Securities or new Securities covered by such Registration Statement; provided
that in no event shall the Guarantor or the Trust be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
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offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Guarantor and the Trust shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to the closing of
sales of such New Securities or Securities pursuant to such Shelf Registration
Statement.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Guarantor and the Trust shall promptly (or within
the time period provided for by clause (ii) hereof, if applicable) prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such circumstances,
the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 shall be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section
4(c) to and including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Guarantor and the Trust may
direct in writing the Initial Purchasers, the Holders of the Securities
and any known Exchanging Dealer to forthwith discontinue the
disposition of Registrable Securities and use of the prospectus
pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such time as such Initial Purchasers,
Holders and Exchanging Dealers shall have received or obtained copies
of an amended or supplemented prospectus in accordance with subsection
(k)(i) above, and such Initial Purchasers, Holders and Exchanging
Dealers shall promptly comply with such written direction upon receipt
thereof.
(iii) Upon the occurrence or existence of any pending
corporate development or any other material event or circumstance that,
in the reasonable judgment of the Guarantor, makes it appropriate to
suspend the availability of a Shelf Registration Statement and the
related Prospectus, the Guarantor and the Trust shall give notice
(without notice of the nature or details of such events) to the Holders
that the availability of the Shelf Registration is suspended and, upon
actual receipt of any such notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing
by the Guarantor that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are
12
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration and
any Prospectus is suspended (the "Deferral Period") shall not exceed 30
days in any three-month period or 60 days in any twelve-month period.
(l) Not later than the effective date of any Registration Statement,
the Guarantor shall provide a CUSIP number for the Securities or the New
Securities, as the case may be, registered under such Registration Statement and
provide the Property Trustee, or if the Trust shall have been theretofore
dissolved and Debentures distributed to the holders of the Securities, the
Indenture Trustee, with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Guarantor and the Trust shall comply with all applicable rules
and regulations of the Commission.
(n) The Guarantor and the Trust shall cause each of the Indenture, the
Trust Agreement and the Guarantee Agreement to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Guarantor and the Trust may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Guarantor and the Trust such information regarding the Holder and the
distribution of such Securities as the Guarantor and the Trust may, from time to
time, reasonably require for inclusion in such Registration Statement. The
Guarantor and the Trust may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request and shall have no liability to such
Holder under Section 8 hereof as a consequence of such exclusion.
(p) In the case of any Shelf Registration Statement, the Guarantor and
the Trust shall enter into customary agreements and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of the Securities. In connection with any Underwritten Offering, the Guarantor
and the Trust shall enter into an underwriting agreement containing
indemnification provisions and procedures no less favorable than those set forth
in Section 6 hereof. In connection with any Shelf Registration Statement, each
Holder of Securities hereby covenants and agrees not to use any free writing
prospectus (as defined in Rule 405 under the Act) without the prior written
consent of the Guarantor.
(q) Each Holder of Securities hereby covenants and agrees not to use
any free writing prospectus (as defined in Rule 405 under the Act) without the
prior written consent of the Guarantor and the Trust.
(r) In the case of any Shelf Registration Statement, the Guarantor and
the Trust shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter
participating in any Underwritten Offering pursuant to such
Registration Statement, and any attorney,
13
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records and pertinent
corporate documents of the Guarantor and its subsidiaries and the
Trust; provided, however, that if any information is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information, the Holders and such attorney, accountant
or other agent, shall agree to keep such information confidential
unless such disclosure is made in connection with a court proceeding or
is required by applicable law, regulation or judicial process or at the
request of any regulatory entity, governmental agency or authority or
self-regulatory agency of securities exchange having or asserting
regulatory powers over any such recipient's activities, or such
information is or becomes available to the public generally or through
a third party, other than by such Holder, attorney, accountant or other
agent, without an accompanying obligation of confidentiality;
(ii) cause the Guarantor's officers, directors, employees,
accountants and auditors and the Trust's Administration Trustees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that if any information is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information, the Holders and such
attorney, accountant or other agent, shall agree to keep such
information confidential unless such disclosure is made in connection
with a court proceeding or is required by applicable law, regulation or
judicial process or at the request of any regulatory entity,
governmental agency or authority or self-regulatory agency of
securities exchange having or asserting regulatory powers over any such
recipient's activities, or such information is or becomes available to
the public generally or through a third party, other than by such
Holder, attorney, accountant or other agent, without an accompanying
obligation of confidentiality;
(iii) in the case of an Underwritten Offering, make such
representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) in the case of an Underwritten Offering, obtain opinions
of counsel to the Guarantor and the Trust and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) in the case of an Underwritten Offering, obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Guarantor and the Trust (and, if necessary, any
other independent certified public
14
accountants of any subsidiary of the Guarantor or of any business
acquired by the Guarantor for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Securities registered
thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "comfort" letters in
connection with primary underwritten offerings; and
(vi) in the case of an Underwritten Offering, deliver such
documents and certificates as may be reasonably requested by the
Majority Holders or the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Guarantor and the Trust.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the
Guarantor and the Trust shall, if requested by an Initial Purchaser, or by a
broker dealer that holds Securities that were acquired as a result of market
making or other trading activities:
(i) make reasonably available for inspection by the
requesting party, and any attorney, accountant or other agent retained
by the requesting party, all relevant financial and other records,
pertinent corporate documents and properties of the Guarantor and its
subsidiaries and the Trust; provided, however, that if any information
is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information, the Holders and such
attorney, accountant or other agent, shall agree to keep such
information confidential unless such disclosure is made in connection
with a court proceeding or is required by applicable law, regulation or
judicial process or at the request of any regulatory entity,
governmental agency or authority or self-regulatory agency of
securities exchange having or asserting regulatory powers over any such
recipient's activities, or such information is or becomes available to
the public generally or through a third party, other than by such
Holder, attorney, accountant or other agent, without an accompanying
obligation of confidentiality;
(ii) cause the Guarantor's officers, directors, employees,
accountants and auditors and the Trust's Administrative Trustees to
supply all relevant information reasonably requested by the requesting
party or any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that if any information is designated
in writing by the Company, in good faith, as confidential at the time
of delivery of such information, the Holders and such attorney,
accountant or other agent, shall agree to keep such information
confidential unless such disclosure is made in connection with a court
proceeding or is required by applicable law, regulation or judicial
process or at the request of
15
any regulatory entity, governmental agency or authority or
self-regulatory agency of securities exchange having or asserting
regulatory powers over any such recipient's activities, or such
information is or becomes available to the public generally or through
a third party, other than by such Holder, attorney, accountant or other
agent, without an accompanying obligation of confidentiality;
(iii) in the case of an Underwritten Offering, make such
representations and warranties to the requesting party, in form,
substance and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters including, but
not limited to, those set forth in the Purchase Agreement;
(iv) in the case of an Underwritten Offering, obtain opinions
of counsel to the Guarantor and the Trust and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the requesting party and its counsel, addressed to the
requesting party, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by the requesting party or its counsel;
(v) in the case of an Underwritten Offering, obtain
"comfort" letters and updates thereof from the independent certified
public accountants of the Guarantor and the Trust (and, if necessary,
any other independent certified public accountants of any subsidiary of
the Guarantor or of any business acquired by the Guarantor for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the requesting
party, in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with primary underwritten
offerings, or if requested by the requesting party or its counsel in
lieu of a "comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by
the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the requesting party or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(t) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Trust or the Guarantor (or to such other
person as directed by the Trust or the Guarantor) in exchange for the New
Securities, the Trust or the Guarantor shall ▇▇▇▇, or caused to be marked, on
the Securities so exchanged that such Securities are being cancelled in exchange
for the New Securities. Concurrently with such exchange of Securities, upon
delivery of corresponding Debentures to the Guarantor (or to such other person
as directed
16
by the Guarantor) in exchange for New Debentures, the Guarantor shall ▇▇▇▇ or
cause to be marked, on the Debentures so exchanged that such Debentures are
being cancelled in exchange for New Debentures. In no event shall the Securities
or Debentures be marked as paid.
(u) The Guarantor and the Trust shall each use its reasonable best
efforts if the Securities have been rated prior to the initial sale of such
Securities and continue to be rated immediately prior to the effective date of a
Registration Statement, to confirm such ratings will apply to the Securities or
the New Securities, as the case may be, immediately following the effective date
of such Registration Statement.
(v) In the event that any Broker-Dealer shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the NASD Rules) thereof in
connection with an Underwritten Offering, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Guarantor and the Trust shall assist such
Broker-Dealer in complying with the NASD Rules.
(w) The Guarantor and the Trust shall use its best efforts to take all
other steps necessary to effect the registration under the Act of the Securities
or the New Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Guarantor shall bear all expenses
incurred in connection with the performance of its and the Trust's obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement in which any of the Initial Purchasers is named as a selling security
holder, will reimburse such Initial Purchasers for the reasonable fees and
disbursements of one firm or counsel (which shall initially be ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, but which may be another nationally recognized law firm
experienced in securities matters designated by such Initial Purchasers) to act
as counsel for such Initial Purchasers in connection therewith, and, in the case
of any Exchange Offer Registration Statement at the time of filing of which any
Initial Purchasers holds an unsold allotment, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of one firm or counsel
acting in connection therewith.
6. Indemnification and Contribution. (a) The Guarantor and the Trust,
jointly and severally, agree to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any Registration
Statement, each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors,
officers, employees, Affiliates and agents of each such Holder, Initial
Purchaser or Exchanging Dealer and each person who controls any such Holder,
Initial Purchaser or Exchanging Dealer within the meaning of either Section 15
of the Exchange Act or Section 20 of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or
17
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any preliminary
Prospectus or the Prospectus, in the light of the circumstances under which they
were made) not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action; provided, however, that neither the Guarantor or the Trust
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission (x) made therein in reliance
upon and in conformity with written information furnished to the Guarantor by or
on behalf of the party claiming indemnification specifically for inclusion
therein or (y) contained in any free writing prospectus used by an indemnified
party without the prior written consent of the Guarantor; and provided further,
that the Guarantor and the Trust shall not be liable to any Holder (or director,
officer, employee, or agent of such Holder or any person controlling such
Holder) with respect to any preliminary prospectus to the extent that any such
loss, claim, damage or liability of such Holder results from the fact that such
Holder sold Securities to a person as to whom it shall be established that there
was not sent or given, at or prior to such sale, a copy of a later dated
prospectus (including a free writing prospectus), if the Guarantor or the Trust
had previously furnished copies thereof in sufficient quantity to such Holder
and sufficiently in advance of such sale to allow for distribution by the date
of such sale, and the loss, claim, damage or liability of such Holder Initial
Purchaser results from an untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in or omitted from
such initial prospectus, which was identified in writing at such time to such
Holder and corrected in such later dated prospectus, and such correction would
have cured the defect giving rise to such loss, claim, damage or liability and
provided further, that the Guarantor and the Trust shall not be liable to any
Holder (or director, officer, employee, or agent of such Holder or any person
controlling such Holder) and this indemnity and any reimbursement agreement
shall not inure to the benefit of any Holder (or director, officer, employee, or
agent of such Holder or any person controlling such Holder) from whom the person
asserting any such loss, claim, damage or liability purchased Securities or New
Securities during a Deferral Period. This indemnity agreement shall be in
addition to any liability that the Guarantor and the Trust may otherwise have.
The Guarantor and the Trust also agree, jointly and severally, in the
case of Underwritten Offerings, to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if
any, of Securities or New Securities, as the case may be, registered under a
Shelf Registration Statement, their directors, officers, employees, Affiliates
or agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Guarantor, the Trust,
each of the Guarantor's directors, each of the Guarantor's officers and each of
the Trust's Administrative Trustees who signs such Registration Statement and
each person who controls the Guarantor or the Trust within the meaning of either
the Act or the Exchange Act, and to reimburse them for expenses, in each case
18
to the same extent as the foregoing indemnity and reimbursement agreement from
the Guarantor and the Trust to each such Holder, but only (i) with reference to
written information relating to such Holder furnished to the Guarantor or the
Trust by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity, (ii) with reference to any loss, claim,
damage or liability arising out of or based upon any untrue statement of a
material fact or omission to state a material fact or alleged untrue statement
or omission contained in a free writing prospectus used by such Holder without
the prior written consent of the Guarantor and (iii) with reference to any loss,
claim, damage or liability arising out of or based upon any untrue statement or
omission or alleged untrue statement contained in a prospectus that was used by
a Holder during a Deferral Period. This indemnity agreement will be in addition
to any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
not more than one such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
19
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending any loss, claim, liability, damage or
action) (collectively "Losses") to which such indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the sale of securities which resulted in such Losses; provided,
however, that in no case shall any Initial Purchaser be responsible, in the
aggregate, for any amount in excess of the net proceeds received by such Holder
from the sale of securities which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Guarantor and the Trust shall be deemed
to be equal to the total net proceeds from the Initial Placement received by the
Trust (before deducting expenses) as set forth in the Final Memorandum. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the
Guarantor or the Trust within the meaning of either the Act or the Exchange Act,
each officer of the Guarantor or Administrative Trustee of the Trust who shall
have signed the Registration Statement and each director of the Guarantor shall
have the same rights to contribution as the Guarantor and the Trust, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Guarantor, the Trust or any of the indemnified persons referred to in this
Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an Underwritten Offering, the Managing Underwriters shall be
selected by the Majority Holders.
20
(b) No person may participate in any Underwritten Offering pursuant to
any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Registration Defaults. If any of the following events shall occur,
then (x) the Guarantor agrees that it shall pay the amounts described below as
liquidated damages on the Debentures to the Holders thereof and (y) the Trust
agrees that it shall pay corresponding amounts as liquidated damages on the
then-outstanding Registrable Securities to the holders thereof (in each case,
the "Registration Default Damages"):
(a) if any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, then Registration Default Damages shall accrue on the Debentures
at a rate of 0.25% per annum of the liquidation amount of the then-outstanding
Registrable Securities until such filing occurs;
(b) if any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the date by which reasonable
best efforts are to be used to cause such effectiveness under this Agreement,
then commencing on the day after such specified date, Registration Default
Damages shall accrue on the Debentures at a rate of 0.25% per annum of the
then-outstanding Registrable Securities until such Registration Statement is
declared effective; or
(c) if any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is
required to be effective under this Agreement, then commencing on the day the
Registration Statement ceases to be effective, Registration Default Damages
shall accrue on the Debentures at a rate of 0.25% per annum of the
then-outstanding Registrable Securities until such Registration Statement
becomes effective or ceases to be required hereunder;
provided, however, that (1) upon the filing of the Registration Statement (in
the case of paragraph (a) above), (2) upon the effectiveness of the Registration
Statement (in the case of paragraph (b) above), or (3) upon the effectiveness of
the Registration Statement which had ceased to remain effective (in the case of
paragraph (c) above), Registration Default Damages shall cease to accrue. The
Registration Default Damages set forth in this Section 8 shall be the sole and
exclusive remedy available to holders of Debentures or Securities as a
consequence of the occurrence of any of the events described in paragraphs (a)
through (c) above.
9. No Inconsistent Agreements. Neither the Guarantor nor the Trust has
entered into, and each of the Guarantor and the Trust agrees not to enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or that otherwise conflicts with the
provisions hereof.
21
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Guarantor and the Trust have
obtained the written consent of the Holders of a majority in aggregate principal
amount of the then-outstanding Registrable Securities.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile or courier guaranteeing overnight or same-day delivery:
(a) if to a Holder, at the most current address given by such holder to
the Trust or the Guarantor in accordance with the provisions of this Section 11,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Trust Agreement;
(b) if to the Representatives, initially at the address or addresses
set forth in the Purchase Agreement; and
(c) if to the Guarantor or the Trust, initially at the addresses
therefor as set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers, the Guarantor or the Trust by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Guarantor or the Trust thereto, subsequent Holders and the indemnified persons
referred to in Section 6 hereof. The Guarantor and the Trust each hereby agrees
to extend the benefits of this Agreement to any Holder as if an original party
hereto.
13. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
14. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
16. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in
22
any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended that all
of the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
17. Securities Held by the Guarantor and the Trust, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Guarantor, the Trust or their respective
Affiliates (other than subsequent Holders of Securities or New Securities if
such subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or New Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Trust, the Guarantor and the several Initial Purchasers.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
▇▇▇▇▇▇▇ Works Capital Trust I
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Trustee
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
UBS Securities LLC
By: Citigroup Global Markets Inc.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
For themselves and the other several Initial Purchasers named in Schedule I to
the Purchase Agreement.
24
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Guarantor and the Trust have agreed that, starting on
the expiration date and ending on the close of business one year after the
expiration date, they will make this prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The Company and the Trust
have agreed that, starting on the expiration date and ending on the close of
business one year after the expiration date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until __________, ______, all dealers
effecting transactions in the new securities may be required to deliver a
prospectus.
Neither the Company nor the Trust will receive any proceeds from any
sale of new securities by broker-dealers. New securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the new securities or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resales new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of one year after the expiration date, the Company and the
Trust will promptly send additional copies of this prospectus and any amendment
or supplement to this prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including, in some cases, the expenses
of one firm or counsel for the Initial Purchasers) and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.] D-1
C-1
ANNEX D
Rider A
-------
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1
