Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
by and among
CAITHNESS COSO FUNDING CORP.
COSO FINANCE PARTNERS
COSO ENERGY DEVELOPERS
COSO POWER DEVELOPERS
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
May 28, 1999
This Registration Rights Agreement (this "Agreement") is made and
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entered into as of May 28, 1999, by and among Caithness Coso Funding Corp. (the
"Issuer"), Coso Finance Partners ("Navy I Partnership"), Coso Energy Developers
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("Navy II Partnership"), Coso Power Developers ("BLM Partnership," and together
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with Navy I Partnership and Navy II Partnership, the "Guarantors"), and
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Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the "Purchaser") who has
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agreed to purchase $110,000,000 in principal amount of the Issuer's 6.80% Senior
Secured Notes due 2001 (the "2001 Notes") and $303,000,000 in principal amount
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of the Issuer's 9.05% Senior Secured Notes due 2009 (the "2009 Notes," and
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together with the 2001 Notes, the "Series A Notes"), pursuant to the Purchase
--------------
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May
21, 1999 (the "Purchase Agreement"), by and among the Issuer, the Guarantors and
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the Purchaser. In order to induce the Purchaser to purchase the Series A Notes,
each of the Issuer and the Guarantors has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Purchaser set forth in
Section 2 of the Purchase Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them by the Indenture,
dated as of May 28, 1999, among the Issuer, the Guarantors and U.S. Bank Trust
National Association, in its capacity as trustee (the "Trustee") and as
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collateral agent (the "Collateral Agent"), relating to the Series A Notes and
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the Series B Notes (the "Indenture").
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The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
2001 Notes: As defined in the Preamble.
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2009 Notes: As defined in the Preamble.
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Affiliate: As defined in Rule 144 of the Securities Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Business Day: Means any day other than a Saturday, a Sunday or a day on
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which banking institutions in the City of New York or at a place of payment with
respect to the Notes are authorized by law, regulation or executive order to
remain closed.
Certificated Securities: Definitive Notes, as defined in the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration Statement relating to the
Series B Notes to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant
to Section 3(b) hereof and (c) the issuance by the Issuer to the Registrar under
the Indenture of Series B Notes in
the same aggregate principal amount as the aggregate principal amount of Series
A Notes tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 3(a) and 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The exchange and issuance by the Issuer of a principal
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amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchaser propose to sell
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the Series A Notes to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act and outside of the United States
pursuant to Regulation S under the Securities Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Guarantors: The Guarantors defined in the preamble hereto and any person
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which becomes a guarantor of either series of Notes, in each case after the date
hereof pursuant to the terms of the Indenture.
Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Liquidated Damages: As defined in Section 5 hereof.
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Notes: The Series A Notes and the Series B Notes (including guarantees
-----
thereof by the Guarantors).
Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Issuer and the
----------------------
Guarantors relating to (a) an offering of Series B Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Notes pursuant
to the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
2
Regulation S: Regulation S promulgated under the Securities Act.
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Restricted Broker-Dealer: Any Broker-Dealer that holds Series B Notes that
------------------------
were acquired in the Exchange Offer in exchange for Series A Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A Notes acquired
directly from the Issuer or any of its affiliates).
Rule 144: Rule 144 promulgated under the Securities Act.
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Securities Act: The Securities Act of 1933, as amended.
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Series A Notes: As defined in the Preamble.
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Series B Notes: The Issuer's 6.80% Series B Senior Secured Notes due 2001
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and 9.05% Series B Senior Secured Notes due 2009 to be issued pursuant to the
Indenture (i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
---
in effect on the date of the Indenture.
Transfer Restricted Notes: Each Series A Note, until the earliest to occur
-------------------------
of (a) the date on which such Series A Note has been exchanged by a Person other
than a broker-dealer for a Series B Note in the Exchange Offer; (b) following
the exchange by a Restricted Broker-Dealer in the Exchange Offer of a Series A
note for a Series B Note, the date on which such Series B Note is sold to a
purchaser who receives from such Restricted Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement; (c) the date on which such Series A Note has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement; or (d) the date on which such Series A
Note is distributed to the public pursuant to Rule 144 under the Securities Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Notes (each, a
"Holder") whenever such Person owns Transfer Restricted Notes.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Issuer and the Guarantors shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 90 days after the Closing
Date (such 90th day being the "Filing Deadline"), (ii) use its best efforts to
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cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date (such 180th day being the "Effectiveness Target Date"), (iii) in connection
-------------------------
with the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Securities Act and
(C)
3
cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted Notes and to permit
resales of Series B Notes by Broker-Dealers that tendered in the Exchange Offer
Series A Notes that such Broker-Dealer acquired for its own account as a result
of market making activities or other trading activities (other than Series A
Notes acquired directly from the Issuer or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Issuer and the Guarantors shall use their respective best efforts
to cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Issuer and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Series B Notes (and the Guarantees thereof) shall
be included for registration in the Exchange Offer Registration Statement. The
Issuer and the Guarantors shall use their respective best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 Business Days after the Effectiveness Target Date.
(c) The Issuer shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Notes that were
acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted Notes
acquired directly from the Issuer or any Affiliate of the Issuer), may exchange
such Transfer Restricted Notes pursuant to the Exchange Offer; however, such
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 its initial sale of any
Series B Notes received by such Broker-Dealer in the Exchange Offer and that the
Prospectus contained in the Exchange Offer Registration Statement may be used to
satisfy such prospectus delivery requirement. Such "Plan of Distribution"
section shall also contain all other information with respect to such sales by
such Restricted Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Restricted Broker-Dealer or disclose the amount of Transfer
Restricted Notes held by any such Restricted Broker-Dealer, except to the extent
required by the Commission. See the Shearman & Sterling no-action letter
(available July 2, 1993).
To the extent necessary to ensure that the Prospectus contained in the
Exchange Offer Registration Statement is available for sales of Series B Notes
by Restricted Broker-Dealers, the Issuer and the Guarantors agree to use their
respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) hereof and in conformity with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer is Consummated, or such shorter period as will
terminate when all Transfer Restricted Notes covered by such Registration
Statement have been sold pursuant thereto. The Issuer and the Guarantors shall
promptly provide sufficient copies of the latest version of such Prospectus to
such Restricted Broker-Dealers promptly upon request, and in no event later than
three Business Days after such request, at any time during such period.
4
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuer and the Guarantors are not
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required to file the Exchange Offer Registration Statement or permitted to
Consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or commission policy (after the Issuer and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) below) or (ii) any
Holder of Transfer Restricted Notes shall notify the Issuer within 20 days
following the Consummation of the Exchange Offer (and confirm such notice in
writing within two days) that (A) based upon written advice of counsel such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) based upon written advice of counsel such Holder may not
resell the Series B Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales by
such Holder or (C) such Holder is a Broker-Dealer and holds Series A Notes
acquired directly from the Issuer or any of its Affiliates, then the Issuer and
the Guarantors shall:
(x) cause to be filed, on or prior to 45 days after the earlier of (i)
the date on which the Issuer determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Issuer receives the notice specified in
clause (a) (ii) above (such earlier date, the "Filing Deadline"), a shelf
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registration statement pursuant to Rule 415 under the Securities Act, which
may be an amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement"), relating to the resale of
----------------------------
Transfer Restricted Notes, by the Holders thereof who have provided the
information required pursuant to Section 4(b) of this Agreement; and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Filing Deadline for the Shelf Registration Statement (such 90th day the
"Effectiveness Target Date").
-------------------------
If, after the Issuer has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Issuer is required to
file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law, then the filing of
the Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such event, the Issuer shall
remain obligated to meet the Effectiveness Target Date set forth in clause (y).
The Issuer and the Guarantors shall use their respective best efforts to
keep the Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Notes by the Holders thereof entitled
to the benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(c)(i)) following the date on
which such Shelf Registration Statement first becomes effective under the
Securities Act, or such shorter period as will terminate when all Transfer
Restricted Notes covered by such Registration Statement have been sold pursuant
thereto.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Notes may
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include any of its Transfer Restricted Notes in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Issuer
in writing, within 10 Business Days after receipt of a request therefor, the
information
5
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Securities
Act for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted Notes
shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and
until such Holder shall have provided all such information. Each Holder as to
which any Shelf Registration Statement is being effected agrees to promptly
furnish additional information required to be disclosed in order to make the
information previously furnished to the Issuer by such Holder not materially
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Target Date, (iii) the Exchange Offer has
not been Consummated within 30 Business Days after the Exchange Offer
Registration Statement is first declared effective by the Commission or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective immediately (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then the Issuer and the Guarantors
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hereby jointly and severally agree to pay to each Holder of Transfer Restricted
Notes affected thereby liquidated damages ("Liquidated Damages") in an amount
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equal to $.05 per week per $1,000 in principal amount of Transfer Restricted
Notes held by such Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the Liquidated Damages
shall increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Notes with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages of $.25 per week per $1,000 in principal amount of Transfer Restricted
Notes; provided that the Issuer and the Guarantors shall in no event be required
to pay Liquidated Damages for more than one Registration Default at any given
time. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the Liquidated
Damages payable with respect to the Transfer Restricted Notes as a result of
such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Series A Notes. All obligations of the Issuer and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Transfer
Restricted Note at the time such Note ceases to be a Transfer Restricted Note
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
-------------------------------------
Offer, the Issuer and the Guarantors shall comply with all applicable provisions
of Section 6(c) below, shall use
6
their respective best efforts to effect such exchange and to permit the resale
of Series B Notes by Broker-Dealers that tendered in the Exchange Offer Series A
Notes that such Broker-Dealer acquired for its own account as a result of its
market making activities or other trading activities (other than Series A Notes
acquired directly from the Issuer or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, following the date hereof there has been announced the
formal adoption of a change in Commission policy with respect to exchange
offers such as the Exchange Offer, that in the reasonable opinion of
counsel to the Issuer raises a substantial question as to whether the
Exchange Offer is permitted by applicable federal law, the Issuer and the
Guarantors hereby agree to use all commercially reasonable efforts to
determine whether they would be permitted to Consummate an Exchange Offer
for Transfer Restricted Notes; provided that the Issuer and the Guarantors
shall not be required to seek a no-action letter or other favorable
decision from the Commission allowing the Issuer and the Guarantors to
Consummate an Exchange Offer for Transfer Restricted Notes.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Notes (including, without limitation, any
Holder who is a Broker-Dealer) shall furnish, upon the request of the
Issuer, prior to the Consummation of the Exchange Offer, a written
representation to the Issuer and the Guarantors (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Issuer, (B)
it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Notes in its ordinary course of business.
Each Holder using the Exchange Offer to participate in a distribution of
the Series B Notes will acknowledge and agree that, if the resales are of
Series B Notes obtained by such Holder in exchange for Series A Notes
acquired directly from the Issuer or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and
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Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
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(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling (available July 2, 1993), and similar no-action
-------------------
letters, and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuer and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Issuer and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
----------------------------------
13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) as
----------------------------
interpreted in the Commission's letter to Shearman & Sterling (available
-------------------
July 2, 1993), (B) including a representation that neither the Issuer nor
the Guarantors has entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of the Issuer's and the Guarantors' information
and belief, each Holder participating in the Exchange Offer is acquiring
the Series B Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission, if
applicable.
7
(b) Shelf Registration Statement. In connection with the Shelf
----------------------------
Registration Statement, the Issuer and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their respective best efforts to
effect such registration to permit the sale of the Transfer Restricted Notes
being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Issuer pursuant to
Section 4(b) hereof), and pursuant thereto the Issuer and the Guarantors will
prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted Notes in accordance with
the intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement, the Issuer and the Guarantors
shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Notes during the period required by this
Agreement, the Issuer and the Guarantors shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use their respective best efforts to cause
such amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with Rules 424, 430A and 462, as applicable, under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the selling Holders promptly and, if requested by such
Persons, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities commission of
the qualification of the Transfer Restricted Notes for offering or sale in
any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, and (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any
8
time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Notes under state
securities or Blue Sky laws, the Issuer and the Guarantors shall use their
respective best efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Notes, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(v) furnish to the Purchaser and each selling Holder named in any
Registration Statement or Prospectus in connection with such sale, if any,
before filing with the Commission, copies of any Registration Statement or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review of such Holders
in connection with such sale, if any, for a period of at least three
Business Days, and the Issuer will not file any such Registration Statement
or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which the selling Holders of the Transfer Restricted Notes
covered by such Registration Statement in connection with such sale, if
any, shall reasonably object within three Business Days after the receipt
thereof. A selling Holder shall be deemed to have reasonably objected to
such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable
requirements of the Securities Act;
(vi) make available at reasonable times for inspection by the selling
Holders participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such selling Holders,
all financial and other records, pertinent corporate documents of the
Issuer and the Guarantors and cause the Issuer's and the Guarantors'
officers, directors and employees to supply all information reasonably
requested by any such selling Holder, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness; provided,
however, that each such person shall be required to maintain in confidence
and not to disclose to any other person any information or records
reasonably designated by the Issuer or the Guarantors as being
confidential, until such time as such information becomes a matter of
public record (whether by virtue of its inclusion in such Registration
Statement or otherwise);
(vii) if requested by any selling Holders in connection with such
sale, if any, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Notes; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Issuer is
9
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each selling Holder who has provided in writing to
the Issuer a facsimile number or address for deliveries and notices in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, excluding any exhibits;
(ix) deliver to each selling Holder who has provided in writing to
the Issuer a facsimile number or address for deliveries and notices,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuer and the Guarantors hereby
consent to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement thereto;
(x) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) which shall be in customary
form and reasonably satisfactory to the Issuer and the Guarantors, and make
such representations and warranties to such selling Holders with respect to
the business of the Issuer and the Guarantors and the Registration
Statement and Prospectus as are customarily made by issuers in underwritten
offerings, and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Transfer Restricted Notes
pursuant to any applicable Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested by any Holder
of Transfer Restricted Notes in connection with an underwritten offering.
In connection with an underwritten offering or upon the written request of
Holders of a majority of the aggregate principal amount of Transfer
Restricted Notes being registered, the Issuer and the Guarantors shall:
(A) upon written request, furnish (or in the case of paragraphs (2)
and (3), use its best efforts to cause to be furnished) to each selling
Holder, upon the effectiveness of the Shelf Registration Statement, or to
each Restricted Broker-Dealer, upon Consummation of the Exchange Offer,
as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Issuer and the Guarantors by (x) the President or any Vice President
and (y) a principal financial or accounting officer of the Issuer and
such Guarantors, confirming, as of the date thereof, the matters set
forth in paragraphs (a) and (b) of Section 9 of the Purchase Agreement
and such other similar matters as the selling Holders or Restricted
Broker-Dealers may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer, or the date of effectiveness of the Shelf Registration
Statement, of counsel for the Issuer and the Guarantors covering
matters similar to those set forth in paragraphs (e) and (f) of
Section 9 of the Purchase Agreement and such other matter as the
selling Holders or Restricted Broker-Dealers, as the case may be, may
reasonably request, and in any event including a statement to the
effect that although such counsel had not undertaken to investigate or
verify independently, and did not pass upon and/or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the applicable Registration Statement, that
such counsel has participated in conferences
10
with officers and other representatives of the Issuer and the
Guarantors and representatives of the independent public accountants
for the Issuer and the Guarantors at which the contents of such
Registration Statement were discussed and that such counsel advises
that, on the basis of the foregoing (relying as to materiality to the
extent such counsel deems appropriate upon the statements of officers
and other representatives of the Issuer and the Guarantors and without
independent check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in the case of
the Exchange Offer Registration Statement, as of the date of
Consummation of the Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration
Statement as of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or
fairness of the financial statements, consultants' reports, notes and
schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus;
and
(3) a customary comfort letter, dated the date of Consummation of
the Exchange Offer, or as of the date of effectiveness of the Shelf
Registration Statement, from the Issuer's and the Guarantors'
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Sections 9(i) and
9(j) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance with
clause (A) above and with any customary conditions contained in the any
agreement entered into by the Issuer and the Guarantors pursuant to this
clause (x);
(xi) prior to any public offering of Transfer Restricted Notes,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Notes under the
securities or Blue Sky laws of such jurisdictions as the selling Holders
may request and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Transfer Restricted
Notes covered by the applicable Registration Statement; provided, however,
that neither the Issuer nor the Guarantors shall be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer Restricted Notes that
will result in such securities no longer being Transfer Restricted Notes,
cooperate with the selling Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted
11
Notes to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Notes in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Notes;
(xiii) use their respective best efforts to cause the disposition of
the Transfer Restricted Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Notes, subject to
the proviso contained in clause (xi) above;
(xiv) provide a CUSIP number for all Transfer Restricted Notes not
later than the effective date of a Registration Statement covering such
Transfer Restricted Notes and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Notes which are in a form
eligible for deposit with The Depository Trust Company;
(xv) otherwise use their respective best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Securities Act);
(xvi) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use their respective best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xvii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Note that, upon receipt of the notice referred to in Section
6(c)(iii)(C) or any notice from the Issuer of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof (in each case, a "Suspension
----------
Notice"), such Holder will forthwith discontinue disposition of Transfer
------
Restricted Notes pursuant to the applicable Registration Statement until (i)
such Holder's has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Issuer that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
-------------------
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Issuer with more recently
dated Prospectuses or (ii) deliver to the Issuer (at the Issuer's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Notes that was current at the
time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of
12
days in the period from and including the date of delivery of the Suspension
Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuer's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Issuer or the
Guarantors, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuer and the Guarantors; (v) all
application and filing fees in connection with listing the Series B Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Issuer and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Issuer will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Issuer or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuer and the Guarantors
will reimburse (i) the Restricted Broker-Dealers holding Transfer Restricted
Notes being tendered in the Exchange Offer and/or resold pursuant to the "Plan
of Distribution" contained in the Exchange Offer Registration Statement and (ii)
the Holders of Transfer Restricted Notes being registered pursuant to the Shelf
Registration Statement, in any such case for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxxx,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Notes for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuer and the Guarantors (together referred to herein as the
"Indemnifying Parties" and each individually as the "Indemnifying Party") agree,
--------------------- ------------------
jointly and severally, to indemnify and hold harmless (i) each Holder and (ii)
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
-----------
person") and (iii) the respective officers, directors, partners, employees,
------
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder") against any losses, claims, damages or liabilities, joint
-------------------
or several, to which such Indemnified Holder may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, preliminary prospectus or Prospectus, or any amendment
or supplement thereto, provided by or on behalf of the Issuer or the Guarantors
to any Holder or any prospective purchaser of Series B Notes, or arise out of or
are based upon 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 in which such statements were made, not misleading,
and will reimburse the Indemnified Holder for any legal or other expenses
13
reasonably incurred by the Indemnified Holder in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that (A) the Issuer or the Guarantors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or legal or
other expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Registration
Statement, preliminary prospectus or Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Issuer or the Guarantors by the Indemnified Holder expressly for use
therein; provided further that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of the Indemnified
Holder of Transfer Restricted Notes if the such Indemnified Holder fails to
deliver a Prospectus, as then amended or supplemented, (so long as the
Prospectus and any amendment or supplement thereto was provided by the Issuer to
the Indemnified Holder in the requisite quantity and on a timely basis to permit
proper delivery) to the person asserting any losses, claims, damages,
liabilities or judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented.
(b) Each Indemnified Holder of Transfer Restricted Notes agrees, severally
and not jointly, to indemnify and hold harmless the Indemnifying Parties and
each person who controls the Indemnifying Parties (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act) and their
respective officers, directors, partners, employees, representatives and agents,
against any losses, claims, damages or liabilities to which such Indemnifying
Parties and such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon 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 in which such statements were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Registration Statement, preliminary prospectus or
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Indemnifying Parties by the
Indemnified Holder expressly for use therein; and will reimburse the
Indemnifying Parties and such other persons for any legal or other expenses
reasonably incurred by such Indemnifying Parties and such other persons in
connection with investigating or defending any such action or claim as such
expenses are incurred. In no event shall any Indemnified Holder be liable or
responsible for the amount in excess of the total dollar amount received by such
Indemnified Holder with respect to its sale of Transfer Restricted Notes.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection except to the extent that it has been
prejudiced in any material respect by such failure or from any liability which
it may otherwise have. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish to assume the defense thereof, with counsel
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be
14
liable to such indemnified party under such subsection for any legal expenses of
counsel or any other expenses. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or 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 any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Indemnifying Parties, on the
one hand, and the Indemnified Holders, on the other hand, from their sale of
Transfer Restricted Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Indemnifying Parties, on
the one hand, and the Indemnified Holders, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The 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 the Indemnifying Parties, on the one hand, or
the Indemnified Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Indemnifying Parties and the Indemnified Holders
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Indemnified Holder
shall not be required to contribute any amount in excess of the amount by which
the total amount received by such Holder with respect to the sale of transfer
Restricted Notes pursuant to a Registration Statement exceeds the amount of any
damages which the Indemnified Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No party shall be liable for contribution with respect to any action
or claim settled without its written consent; provided, however, that such
written consent was not unreasonably withheld.
(e) The obligations of the Indemnifying Parties under this Section 8 shall
be in addition to any liability which the Indemnifying Parties may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Indemnified Holder within the meaning of the Securities
Act; and the obligations of the Indemnified Holder under this Section 8 shall be
in addition to any liability which the Indemnified Holder may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Indemnifying Parties and to each person, if any, who controls any
Indemnifying Parties within the meaning of the Securities Act.
15
SECTION 9. RULE 144A
Each of the Issuer and the Guarantors hereby agrees with each Holder, for
so long as any Transfer Restricted Notes remain outstanding and during any
period in which the Issuer or any Guarantor is not subject to Section 13 or
15(d) of the Exchange Act, to make available, upon request of any Holder of
Transfer Restricted Notes, to any Holder or beneficial owner of Transfer
Restricted Notes in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Notes designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Notes
pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
(a) Remedies. Each of the Issuer and the Guarantors acknowledge and agree
--------
that each Holder, in addition to being entitled to exercise all rights provided
herein, in the Indenture, the Purchase Agreement or granted by law, including
the recovery of Liquidated Damages, will be entitled to specific performance of
its rights under this Agreement. The Issuer and the Guarantors agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of a breach by them of the provisions of this Agreement and hereby agree
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Neither the Issuer nor the Guarantors
--------------------------
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Issuer nor the Guarantors has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Issuer's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Issuer has obtained the written consent of
Holders of all outstanding Transfer Restricted Notes and (ii) in the case of all
other provisions hereof, the Issuer has obtained the written consent of Holders
of a majority of the outstanding principal amount of Transfer Restricted Notes
(excluding Transfer Restricted Notes held by the Issuer or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer, may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted Notes
subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Issuer and the
Guarantors, on the one hand, and the Purchaser, on the other hand, and shall
have the right to enforce such agreements directly to the extent they may deem
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
16
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Issuer or the Guarantors:
Caithness Coso Funding Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
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
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.
Upon the date of initial filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement, as the case may be, notice shall be
delivered to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, on behalf of
the Purchaser (in the form attached hereto as Exhibit A) and shall be addressed
to: Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Notes; provided, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Notes in violation of the terms hereof or of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Notes in any manner, whether by operation of law or otherwise, such
Transfer Restricted Notes shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Notes such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof; provided, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assignee of a Holder unless and to the extent such successor or assignee of
Holder acquired Transfer Restricted Notes from such Holder.
17
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Notes. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CAITHNESS COSO FUNDING CORP.
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. XxXxxxxxx
Title: Executive Vice President
COSO FINANCE PARTNERS,
a California general partnership
By: New CLOC Company, LLC,
a Delaware limited liability company,
its Managing General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
By: ESCA LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
COSO ENERGY DEVELOPERS,
a California general partnership
By: New CHIP Company, LLC,
a Delaware limited liability company,
its Managing General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
By: Caithness Coso Holdings, LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
COSO POWER DEVELOPERS,
a California general partnership
By: New CTC Company, LLC,
a Delaware limited liability company,
its Managing General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
By: Caithness Navy II Group, LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxxxxxx X. XxXxxxxxx
Executive Vice President
2
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxx X. Felt
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Name: Xxxxx X. Felt
Title: Vice President
3
