Exhibit 4(e)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated July 14,
2004, is made between TXU ENERGY COMPANY LLC, a Delaware limited liability
company (the "Company"), and Credit Suisse First Boston LLC, as representative
of the Initial Purchasers (as defined herein).
This Agreement is made pursuant to the Purchase Agreement dated July 9,
2004 (the "Purchase Agreement"), between the Company, as issuer, and the Initial
Purchasers, which provides for the sale by the Company to the Initial Purchasers
of $800,000,000 aggregate principal amount of the Company's Floating Rate Senior
Notes due 2006 (the "Notes"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Additional Interest Rate" shall have the meaning set forth in Section
2(e) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Holders" shall have the meaning set forth in Section 7(c)
hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)(A)
hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"Company" shall have the meaning set forth in the preamble to this
Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Eligible Holder" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" shall mean the Company's Exchange Floating Rate Senior
Notes due 2006 containing terms identical to the Notes (except that the Exchange
Notes will not contain registration rights or terms with respect to transfer
restrictions under the Securities Act and will not provide for any Additional
Interest to be payable with respect thereto).
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange the Registrable Securities for a like principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
Registration Statement on Form S-4 under the Securities Act (or, if applicable,
on another appropriate form).
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Holders" shall mean the Initial Purchasers, for so long as they own
beneficial interests in any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture (For Unsecured Debt Securities)
relating to the Notes and the Exchange Notes dated as of March 1, 2003 between
the Company, as issuer, and the Trustee, as the same may be amended from time to
time in accordance with the terms thereof.
"Initial Purchasers" shall mean Credit Suisse First Boston LLC,
Citigroup Global Markets Inc., Commerzbank Capital Markets Corp. and Calyon
Securities (USA) Inc. collectively (and each of them, an "Initial Purchaser").
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean the date of original issuance of the Notes.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes.
"NASD" shall mean National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t)(A) hereof.
2
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Notes; provided, however, that
Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to the Notes shall have been declared effective under the
Securities Act and the Notes shall have been disposed of pursuant to such
Registration Statement, (ii) the Notes shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) the Notes shall have ceased to be
outstanding, (iv) the Notes shall have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradable by the
holder thereof (other than an affiliate of the Company) or (v) two years (or
such shorter period as may hereafter be provided in Rule 144(k) under the
Securities Act (or similar successor rule)) have elapsed since the Issue Date.
"Registration Default" shall have the meaning set forth in Section 2(e)
hereof.
"Registration Expenses" shall mean any and all expenses incident to the
performance of or the compliance by the Company with this Agreement, including,
without limitation: (i) all SEC or NASD registration and filing fees; (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Registrable Securities) and compliance with the rules of the
NASD in an amount not exceeding $15,000 in the aggregate, (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company, of counsel for the Holders hereunder in connection with the Exchange
Offer, and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of the Trustee, and
any paying agent, exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities or the Exchange Notes on any national securities exchange or
exchanges and (viii) the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement.
3
"Registration Statement" shall mean any registration statement of the
Company under the Securities Act that covers any of the Exchange Notes or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter period as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" Registration
Statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Securities, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean The Bank of New York, and any successor thereto,
as trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer.
To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, (i) cause to be filed with the
SEC an Exchange Offer Registration Statement on an appropriate form under the
Securities Act covering the Exchange Offer, (ii) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be declared effective
under the Securities Act by the SEC not later than the date that is 270 days
after the Issue Date and (iii) promptly offer the Exchange Notes in exchange for
surrender of the Notes upon the effectiveness of the Exchange Offer Registration
Statement, and consummate the Exchange Offer within 315 days after the Issue
Date. Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it being understood that the
objective of such Exchange Offer is to enable each Holder electing to exchange
Registrable Securities for a like principal amount of Exchange Notes (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the Securities Act and is not a broker-dealer tendering Registrable
Securities acquired directly from the Company for its own account, acquires the
Exchange Notes in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Notes) (any Holder meeting
all such requirements, hereinafter an "Eligible Holder"), and to transfer such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
4
In connection with the Exchange Offer, the Company shall:
(i) deliver or mail to each Holder that is a registered
owner of Registrable Securities a copy of the Prospectus
forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents (together, the
"Notice");
(ii) use its reasonable best efforts to keep the Exchange
Offer open for acceptance for a period of not less than
30 days after the date Notice thereof is mailed to the
Holders (or longer if required by applicable law)
(such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw, at any time prior to the
close of business, New York time, on the last Business
Day of the Exchange Period, any Notes tendered for
exchange by sending to the institution specified in
the Notice, a telegram, telex, facsimile transmission
or letter, received before aforesaid time, setting forth
the name of such Holder, the principal amount of Notes
delivered for exchange, and a statement that such
Holder is withdrawing his election to have such Notes
exchanged;
(v) notify each Holder by means of the Notice that any Note
not tendered by such Holder in the Exchange Offer will
remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to
the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted
for exchange by the Company; and
(iii) issue, and cause the Trustee to promptly authenticate
and deliver to the Depositary (or if, the Exchange
Notes are in certificated form, each Holder),
Exchange Notes equal in principal amount to the
principal amount of the Notes surrendered by such
Holder.
5
Interest on each Exchange Note issued pursuant to the
Registered Exchange Offer will accrue from the last date on which interest was
paid on the Note surrendered in exchange therefor or, if no interest has been
paid on such Note, from the Issue Date. To the extent not prohibited by any law
or applicable interpretation of the staff of the SEC, the Company shall use its
reasonable best efforts to complete the Exchange Offer as provided above. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC and that each Holder tendering Notes for exchange shall
be an Eligible Holder. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Notes in the Exchange Offer
will be required to make certain customary representations in connection
therewith, including representations that (i) it is not an affiliate of the
Company, (ii) the Exchange Notes to be received by it were acquired in the
ordinary course of its business and (iii) at the time of the Exchange Offer, it
has no arrangement with any person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Notes. Each Holder hereby
acknowledges and agrees that any Participating Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the Exchange Notes:
(1) could not under SEC policy as in effect on the date of this Agreement rely
on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter obtained based on
the representations in clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with the secondary resale transaction and that such a secondary
resale transaction should be covered by an effective registration statement
containing the selling security holder information required by Items 507 and
508, as applicable, of Regulation S-K, the SEC standard instructions for filing
forms under the Securities Act, if the resales are of Exchange Notes obtained by
such Holder in exchange for Notes acquired by such Holder directly from the
Company.
Upon consummation of an Exchange Offer in accordance with this
Section 2(a): (i) any Eligible Holder that failed to participate in such
Exchange Offer shall not be entitled to include any of its Registrable
Securities in any Shelf Registration Statement pursuant to this Agreement; (ii)
the provisions of this Agreement shall continue to apply, mutatis mutandis, with
respect to Exchange Notes held by Participating Broker-Dealers; and (iii) the
Company shall have no further obligation to register any Registrable Securities
pursuant to Section 2(b) of this Agreement (other than pursuant to Sections
2(b)(iii) and (iv)).
(b) Shelf Registration.
In the event that (i) the Company is not permitted to effect
the Exchange Offer because of any change in law or in applicable interpretations
of the staff of the SEC, (ii) for any other reason the Exchange Offer is not
consummated on or prior to 315 days after the Issue Date, (iii) any Initial
Purchaser so requests with respect to Notes not eligible to be exchanged for
Exchange Notes in the Exchange Offer, (iv) any Holder (other than a
Participating Broker-Dealer) is not permitted by applicable law or
interpretations of the staff of the SEC to participate in the Exchange Offer or,
6
in the case of any Holder (other than a Participating Broker-Dealer) that
participates in the Exchange Offer, such Holder does not receive freely
tradeable Exchange Notes on the date of the exchange and any such Holder so
requests, or (v) the Company so elects, the Company shall, for the benefit of
the Holders, promptly deliver to the Holders and the Trustee written notice
thereof and, at its cost, use its reasonable best efforts to have a Shelf
Registration Statement covering continuous resales of the Notes or the Exchange
Notes, as the case may be, declared effective by the SEC within the later of (i)
180 days after being required or requested to file a Shelf Registration
Statement and (ii) 270 days after the Issue Date. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees promptly to furnish to
the Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective for the Rule 144(k)
Period (subject to extension pursuant to the last paragraph of Section 3 hereof)
or for such shorter period which will terminate when all of the securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities (the "Effectiveness
Period"). The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration. The Company will, in the
event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement and notify each such Holder when the Shelf
Registration has become effective. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses.
The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or 2(b) hereof. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement.
7
An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
(or a combination of the two) will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that if, after it
has been declared effective, the offering of Registrable Securities pursuant to
a Shelf Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume. The
Company will be deemed not to have used its reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the requisite period
if it voluntarily takes any action, or omits to take any action, which action or
omission would result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period unless such action or omission is required by applicable law.
(e) Additional Interest.
The Company will pay additional interest ("Additional
Interest") on the Notes if:
(i) the Exchange Offer Registration Statement (or, if a
change in law or in applicable interpretations of the
staff of the SEC does not permit the Company to effect
an Exchange Offer, the Shelf Registration Statement)
is not declared effective by the SEC within 270 days
after the Issue Date; or
(ii) the Exchange Offer is not consummated within 315 days
after the Issue Date (unless the Company is not
permitted to effect an Exchange Offer as specified in
clause (i) above); or
(iii) the Shelf Registration Statement (except as specified
in clause (i)) is not declared effective by the SEC
within the later of (x) 180 days after being requested
to file a Shelf Registration Statement and (y)
270 days after the Issue Date; or
(iv) (A) after the Exchange Offer Registration Statement is
declared effective, such Registration Statement
thereafter ceases to be effective at any time during
the Exchange Period or the Applicable Period, as the
case may be, or (B) after the Shelf Registration
Statement has been declared effective, such Registration
Statement ceases to be effective or usable in connection
with resales of Notes at any time prior to the
expiration of the Rule 144(k) Period (other than
after such time as all Notes have been disposed of
thereunder or otherwise cease to be Registrable
Securities) (each such event specified in (i) -
(iv) of this Section 2(e), a "Registration Default").
Additional Interest will accrue on the Notes and the Exchange Notes, as the case
may be, from and including the date on which any such Registration Default shall
occur to but excluding the date on which all such Registration Defaults have
been cured, or if earlier, the date on which all the Notes may first be resold
in reliance on Rule 144(k) under the Securities Act, at the rate of .50% per
annum ("Additional Interest Rate"); provided, however, that the Additional
Interest Rate may not exceed in the aggregate .50% per annum.
8
Any amounts of Additional Interest due pursuant to this
Section 2(e) will be payable in cash on the relevant payment dates for the
payment of interest on the Notes pursuant to the Indenture.
(f) Specific Enforcement.
Without limiting the remedies available to the Holders, the
Company acknowledges that any failure of the Company to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the obligations of the Company under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect
to the Registration Statements pursuant to Sections 2(a) and 2(b) hereof, the
Company shall:
(a) prepare and file with the SEC a Registration Statement
or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified and on the appropriate form(s) under the
Securities Act, which form(s) (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall comply as
to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith;
and use its reasonable best efforts to cause such Registration Statement(s) to
become effective and remain effective in accordance with Section 2 hereof;
provided, however, that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall furnish to and afford the Holders of the Registrable
Securities and each such Participating Broker-Dealer, as the case may be,
covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. The Company shall not
file any Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
9
supplemented, if so determined by the Company or requested by the SEC, by any
required prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and the rules
and regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf Registration Statement,
at least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and advise
such Holder that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders, (ii) furnish to
each Holder of Registrable Securities included in the Shelf Registration
Statement and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the Registrable
Securities, (iii) consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities
included in the Shelf Registration Statement in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto and (iv) furnish to each Holder of Registrable Securities
either a summary of the terms of this Agreement or a copy of this Agreement;
(d) in the case of a Shelf Registration, use its reasonable
efforts to register or qualify the Registrable Securities under all applicable
state securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as any Holder
of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request in writing in advance of such date of effectiveness;
provided, however, that the Company shall not be required to (i) qualify as a
foreign limited liability company or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) file annual reports or comply with any other requirements deemed in its
reasonable judgment to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or
(2) Participating Broker-Dealers from whom the Company has received prior
written notice that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Notes and are required to deliver Prospectuses,
promptly notify each Holder of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
10
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the qualification of the Registrable Securities or
the Exchange Notes to be offered or sold by any Participating Broker-Dealer in
any jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any purchase agreement, securities sales
agreement or other similar agreement, if any, cease to be true and correct in
all material respects, (v) of the happening of any event or the failure of any
event to occur or the discovery of any facts or otherwise, during the
Effectiveness Period which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vi) when the Company reasonably
determines that a post-effective amendment to the Registration Statement would
be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as soon as
practicable;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least two
Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iv), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
notify each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
11
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders and make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for reasonable discussion of such
document;
(k) obtain a CUSIP number for the Exchange Notes, no later
than the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable Securities,
as the case may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture, if required by the TIA, to be
qualified under the TIA in connection with the registration of the Exchange
Notes or Registrable Securities, as the case may be, and effect such changes to
such documents as may be required for them to be so qualified in accordance with
the terms of the TIA and execute, and use its reasonable best efforts to cause
the Trustee to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to enable
such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and consistent with the terms of the Purchase Agreement and take all
such other appropriate actions as are reasonably requested in order to expedite
or facilitate the registration or the disposition of such Registrable
Securities, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is with respect to an
underwritten offering, if requested by (x) any Initial Purchaser, in the case
where such Initial Purchaser holds Registrable Securities acquired by such
Initial Purchaser as part of the Initial Purchasers' initial distribution and
(y) other Holders of Notes covered thereby: (i) make such representations and
warranties to Holders of such Registrable Securities and the underwriters (if
any), with respect to the business of the Company and its subsidiaries as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in principal amount of the Registrable Securities
being sold, addressed to each selling Holder and the underwriters (if any)
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such opinions
may be subject to customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters (if any) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of such underwriters, such letters to be in
12
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72 of the American Institute of Certified
Public Accountants ("SAS 72") and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section (including, without limitation, such underwriters and selling
Holders). The above shall be done at each closing under such underwriting
agreement or, as and to the extent required thereunder and as consistent with
the terms of, the Purchase Agreement;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) hereof or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make reasonably available
for inspection by any selling Holder of such Registrable Securities being sold,
or each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent limited
liability company and/or corporate documents and properties of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable the Inspectors to exercise any applicable due diligence
responsibilities, and cause the managers, officers, directors and employees of
the Company and its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such Registration
Statement; provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of all such parties by the
Company-designated Holders' counsel, at the expense of such parties as described
in Section 2(c) hereof. Records of the Company and its subsidiaries, which the
Company determines, in good faith, to be confidential and any records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration Statement,
provided that the Company shall be consulted prior to any such disclosure, (ii)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, is required by any applicable law, rule
or regulation, or is necessary in connection with any action, suit or proceeding
or (iii) the information in such Records has been made available to the public.
Each selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information obtained by
it or any Inspector retained by it as a result of such inspections shall be
deemed confidential and shall not be used by it or any Inspector retained by it
as the basis for any market transactions in the securities of the Company unless
and until such is made generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
13
(o) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and make
generally available to its security holders an earning statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 60 days
after the end of any 12-month period (or 120 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statement shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Securities participating in the
Exchange Offer and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Notes, (ii) each of the Exchange
Notes constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms (with customary
exceptions) and (iii) the Indenture has been duly qualified under the TIA, or no
such qualification is required by the TIA;
(q) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by Holders to the Company (or to such other Person
as directed by the Company ), in exchange for the Exchange Notes, xxxx, or cause
to be marked, on such Registrable Securities delivered by such Holders that such
Registrable Securities are being canceled in exchange for the Exchange Notes,
and in no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities covered by a
Registration Statement contemplated hereby;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) (a) indicate in a "Plan of Distribution" section contained in the
Prospectus contained in the Exchange Offer Registration Statement that any
broker or dealer registered under the Exchange Act who holds Notes that are
Registrable Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Securities acquired directly from the Company) (such broker or dealer, a
"Participating Broker-Dealer"), may exchange such Notes pursuant to the Exchange
Offer; however, such Participating Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by such Participating
14
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Participating Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement and (b)
include in such "Plan of Distribution" section all other information with
respect to such resales by Participating Broker-Dealers that the SEC may require
in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Participating Broker-Dealer or disclose
the amount of Exchange Notes held by any such Participating Broker-Dealer except
to the extent required by the SEC as a result of a change in policy announced
after the date of this Agreement, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in Section
3(e), without charge, as many copies of the Prospectus included in the Exchange
Offer Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request (the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto by any Person subject to the prospectus delivery requirements
of the Securities Act, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Notes covered by the Prospectus or any
amendment or supplement thereto), (iii) use its reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons must
comply with such requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Notes; provided, however, that such
period shall not be required to exceed 90 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period") and (iv) include in the related letter of transmittal or similar
documentation to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
and (y) a statement to the effect that by a Participating Broker-Dealer making
the acknowledgement described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if requested by the Initial Purchasers or such
other representative of the Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel in form and substance reasonably satisfactory to the Initial
Purchasers or such other representative of the Participating Broker-Dealers,
covering the matters customarily covered in opinions requested in connection
15
with Exchange Offer Registration Statements and such other matters as may be
reasonably requested (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions), (ii) an
officer's certificate containing certifications substantially similar to those
set forth in the certificate delivered pursuant to Section 8(c) of the Purchase
Agreement and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the effectiveness
of the Exchange Offer Registration Statement, a comfort letter, in each case, in
customary form as permitted by SAS 72. Each of the foregoing shall be consistent
with the terms of the Purchase Agreement.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller as may be required by the staff of the SEC to
be included in a Registration Statement. The Company may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Company shall not have any obligation to register under the Securities Act
the Registrable Securities of a seller who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
Section 3(t) hereof, are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Notes, as the case may be, current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities or Exchange Notes, as the case may be, pursuant to a Registration
Statement, the Company shall file and use its best efforts to have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, each
underwriter who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act (each an
"Indemnified Party") from and against any and all losses, claims, damages or
16
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act or any other statute or common law and shall reimburse
each such Indemnified Party for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) as and when incurred by
them in connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Prospectus, or in a Registration Statement, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
indemnity agreement contained in this Section 4 as to any Indemnified Party
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Indemnified Party expressly for use in
connection with the preparation of a Registration Statement or the related
Prospectus or any amendment or supplement to either thereof, or arising out of,
or based upon, statements in or omissions from the part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
of the Trustee under the TIA; and provided further, that the indemnity agreement
contained in this Section 4 with respect to the related Prospectus or any
amendment or supplement thereto (if the Company shall have furnished any
amendment or supplement thereto) shall not inure to the benefit of any
Indemnified Party on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of Registrable Securities to any
person if a copy of the related Prospectus (exclusive of any documents
incorporated by reference) shall not have been given or sent to such person by
or on behalf of such Indemnified Party with or prior to the written confirmation
of the sale involved unless, with respect to the delivery of any amendment or
supplement to the Prospectus, the alleged omission or alleged untrue statement
was not corrected in such amendment or supplement at the time of such written
confirmation. The indemnity agreement of the Company contained in this Section 4
shall remain operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made by or on behalf of
any Indemnified Party, and shall survive the registration of the Registrable
Securities.
(b) Each Holder shall indemnify, defend and hold harmless the Company
and any underwriter and other selling Holder, and their respective managers,
officers and directors, and each person who controls the Company or any
underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act or any other statute or common law and shall reimburse
each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) as and when incurred by them in
connection with investigating any such losses, claims, damages or liabilities
or in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or the related Prospectus, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
17
which they were made, not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Holder, expressly for use in connection with the
preparation of a Registration Statement or the related Prospectus or any
amendment or supplement to either thereof. The indemnity agreement of the
respective Holders contained in this Section 4 shall remain operative and in
full force and effect regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, any underwriter, or any other
selling Holder, or their respective managers, directors or officers, or any such
controlling person, and shall survive the registration of the Registrable
Securities; provided, however, that, no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities pursuant to a Registration Statement.
(c) The Company and the Holders each shall, upon the receipt of notice of
the commencement of any action against it or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall be
sought hereunder, but the failure to notify such indemnifying party or parties
of any such action shall not relieve such indemnifying party or parties from any
liability hereunder to the extent such indemnifying party or parties is/are not
materially prejudiced as a result of such failure to notify and in any event
shall not relieve such indemnifying party or parties from any liability that it
or they may have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at its own expense in
the defense, or, if it so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party shall elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them; provided, however, if the
defendants in any such action (including impleaded parties) include both the
indemnified party and the indemnifying party and counsel for the indemnifying
party shall have reasonably concluded that there may be a conflict of interest
involved in the representation by a single counsel of both the indemnifying
party and the indemnified party, the indemnified party or parties shall have the
right to select separate counsel, satisfactory to the indemnifying party, whose
reasonable fees and expenses shall be paid by such indemnifying party, to
participate in the defense of such action on behalf of such indemnified party or
parties (it being understood, however, that the indemnifying party shall not be
liable for the fees and expenses of more than one separate counsel (in addition
to local counsel) representing the indemnified parties who are parties to such
action). The Company and the Holders each agree that without the other party's
prior written consent, which consent shall not be unreasonably withheld, it will
not settle, compromise or consent to the entry of any judgment in any claim in
respect of which indemnification may be sought under the indemnification
provisions of this Agreement, unless such settlement, compromise or consent (i)
includes an unconditional release of such other party from all liability arising
out of such claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of such other party.
18
(d) If the indemnification provided for in subparagraph (a) or
(b) above shall be unenforceable under applicable law by an indemnified party,
each indemnifying party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities and expenses for
which each such indemnification provided for in subparagraph (a) or (b) above
shall be unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative benefits received by each indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the Registrable
Securities pursuant to this Agreement, (ii) if an allocation solely on the basis
provided by clause (i) is not permitted by applicable law or is inequitable or
against public policy, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of each indemnifying party on the one hand and the indemnified party on
the other hand in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses and (iii) any
other relevant equitable considerations; provided, however, that no indemnified
party guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party not guilty of such fraudulent misrepresentation. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or the indemnified party and each such party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and each of the Holders agree
that it would not be just and equitable if contributions pursuant to this
paragraph (d) were to be determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not taken account of the equitable consideration referred
to above. Notwithstanding the provisions of this Section 4, no Holder shall be
required to contribute in excess of the amount equal to the excess of (i) the
net proceeds received by such Holder from the sale of Registrable Securities by
it to Eligible Holders, over (ii) the amount of any damages which such Holder
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of each Holder
to contribute pursuant to this Section 4 are several and not joint and shall not
exceed the same proportion of all contributions of Holders required hereunder as
such Holder's Registrable Securities sold pursuant to the Registration Statement
is of the total amount of Registrable Securities sold pursuant to the
Registration Statement.
5. Participation in Underwritten Registrations.
No Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents reasonably required
under the terms of such underwriting arrangements.
6. Selection of Underwriters.
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell the securities covered by
such Shelf Registration in an underwritten offering. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
19
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the Exchange
Act and any Registrable Securities remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder. If the Company ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (A) make publicly available such information as is necessary to
permit sales of their securities pursuant to Rule 144 under the Securities
Act, (B) deliver such information to prospective purchasers as is necessary
to permit sales of their securities pursuant to Rule 144A under the
Securities Act and (C) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be amended from
time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered
into, and the Company will not on or after the date of this Agreement enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will
not for the term of this Agreement in any way conflict with the rights granted
to the holders of the Company's other issued and outstanding securities under
any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities or the holders of at least a majority in
aggregate principal amount of the outstanding Exchange Notes, as the case
may be (such Holders or holders of the Exchange Notes, as applicable, the
"Applicable Holders") affected by such amendment, modification, supplement,
waiver or departure; provided no departure with respect to the provisions
of Section 4 hereof shall be effective as against any Applicable Holder
without the consent of such Applicable Holder. Notwithstanding the
foregoing sentence, (i) this Agreement may be amended, without the consent
of any Applicable Holder, by written agreement signed by the Company and
the Trustee, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be defective or inconsistent with any other
provision of this Agreement or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement and shall not
adversely affect the interests of the Applicable Holders in any material
20
respect, (ii) without the consent of any Applicable Holder, this Agreement
may be amended, modified or supplemented, and waivers and consents to
departures from the provisions hereof may be given, by written agreement
signed by the Company and the Trustee to the extent that any such
amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with applicable law
(including any interpretation of the staff of the SEC) or any change
therein and (iii) to the extent any provision of this Agreement relates to
the Initial Purchasers, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions
may be given, by written agreement signed by the Company and the Initial
Purchasers.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with
the provisions of this Section 7(d), which address initially is, with
respect to the Initial Purchasers, the addresses set forth in the Purchase
Agreement and (ii) if to the Company, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section
7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each Initial Purchaser, including, without limitation and without the need
for an express assignment, subsequent Applicable Holders; provided,
however, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation of the
terms of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such Person shall be conclusively deemed to
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.
(f) Third Party Beneficiary. Each Initial Purchaser shall,
when it no longer holds any beneficial interest in Notes or Exchange Notes, be
a third party beneficiary of the agreements made hereunder among the Company
and the Holders and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
21
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TXU ENERGY COMPANY LLC
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer and Assistant Secretary
Accepted and delivered as of the date first above written:
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
as representative of the Initial
Purchasers
23
