Exhibit 4.10
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
LSP ENERGY LIMITED PARTNERSHIP
LSP BATESVILLE FUNDING CORPORATION
$150,000,000 7.164% Series A Senior Secured Bonds
due January 15, 2014
$176,000,000 8.160% Series B Senior Secured Bonds
due July 15, 2025
May 21, 1999
Credit Suisse First Boston Corporation
Scotia Capital Markets (USA) Inc.
TD Securities (USA) Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the issue and sale of (i) $150,000,000 principal
amount of 7.164% Series A Senior Secured Bonds due January 15, 2014 and (ii)
$176,000,000 principal amount of 8.160% Series B Senior Secured Bonds due July
15, 2025 (the "Initial Securities") issued by LSP Energy Limited Partnership, a
Delaware limited partnership, and LSP Batesville Funding Corporation, a
Delaware corporation (the "Issuers"), pursuant to the terms of the Indenture (as
defined below) and as an inducement to Credit Suisse First Boston Corporation,
Scotia Capital Markets (USA) Inc. and TD Securities (USA) Inc. (collectively,
the "Initial Purchasers") to enter into the Purchase Agreement dated May 13,
1999 (the "Purchase Agreement"), among the Issuers and the Initial Purchasers,
the Issuers hereby agree to provide the registration rights set forth in this
Registration Rights Agreement (this "Agreement") for the benefit of the holders
of the Initial Securities. The execution of this Agreement is a condition to the
purchase of the Initial Securities under the Purchase Agreement.
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall equally apply to both the
singular and plural forms of the terms defined. As used in this Agreement, the
following terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 5 of this Agreement.
"Affiliate", with respect to any Person, shall mean any other Person
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such first Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or by contract or otherwise. For
purposes of Section 2, an "Affiliate" of the Issuers shall mean and include, in
addition, any Person deemed an affiliate thereof under the Securities Act or the
Exchange Act in connection with the Exchange Offer.
"Closing Date" shall mean the date of the initial issuance and sale
of the Initial Securities.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Cure Date" shall have the meaning set forth in Section 4(a) of this
Agreement.
"Effective Date" shall mean the date which is 270 days after the
Closing Date.
"Effective Period" shall have the meaning set forth in Section 3(a)
of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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"Exchange Offer" shall have the meaning set forth in Section 2(a) of
this Agreement.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) of this Agreement.
"Exchange Period" shall have the meaning set forth in Section 2(a)
of this Agreement.
"Exchange Securities" shall have the meaning set forth in Section
2(a) of this Agreement.
A "holder" of Registrable Securities shall mean the registered
holder of such securities or any beneficial owner thereof.
"Holder Indemnified Party" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Holder Information" shall have the meaning set forth in Section
8(a) of this Agreement.
"Illiquidity Event" with respect to the Registrable Securities shall
mean any of the following events:
(a) as of the Effective Date, both (i) an Exchange Offer
Registration Statement (which, if applicable pursuant to Section 2(a),
covers resales of such Exchange Securities) has not become effective and
(ii) the Registrable Securities are not the subject of an Initial Shelf
Registration Statement which has become effective; or
(b) the Exchange Securities offered in exchange for the Registrable
Securities are the subject of an Exchange Offer Registration Statement
which was effective (and which, if applicable pursuant to Section 2(a),
covered resales of such Exchange Securities) but which ceased to be
effective for any reason prior to the end of the Exchange Period; or
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(c) the Registrable Securities are the subject of an Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement which
was effective but which has ceased to be effective for any reason prior to
the end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on the date
subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in clause (a)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
Securities exchanged for such Registrable Securities) shall become
effective and an Exchange Offer for such Registrable Securities shall have
commenced or (ii) an Initial Shelf Registration Statement covering such
Registrable Securities shall become effective; or
(ii) in the case of an Illiquidity Event described in clause (b)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
Securities offered in exchange for such Initial Securities) shall become
effective and an Exchange Offer for such Registrable Securities shall have
commenced pursuant to an Exchange Offer Registration Statement or (ii) an
Initial Shelf Registration Statement covering such Registrable Securities
shall become effective; or
(iii) in the case of an Illiquidity Event described in clause (c)
above, a Subsequent Shelf Registration Statement covering such Registrable
Securities shall become effective.
"Indenture" shall mean the Trust Indenture dated as of May 21, 1999,
and as further amended or supplemented from time to time in accordance with the
terms thereof, among the Issuers and the Trustee, and pursuant to which the
Initial Securities are to be issued.
"Initial Purchasers" shall have the meaning set forth in the first
paragraph of this Agreement.
"Initial Securities" shall have the meaning set forth in the first
paragraph of this Agreement.
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"Initial Shelf Registration Statement" shall have the meaning set
forth in Section 3(a) of this Agreement.
"Inspectors" shall have the meaning set forth in Section 5(m) of
this Agreement.
"Issuers" shall have the meaning set forth in the first paragraph of
this Agreement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an Underwritten
Offering.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments and all material incorporated by reference into such prospectus.
"Purchase Agreement" shall have the meaning set forth in the first
paragraph of this Agreement.
"Records" shall have the meaning set forth in Section 5(m) of this
Agreement.
"Registrable Securities" shall mean the Initial Securities upon
original issuance thereof and at all times subsequent thereto until, in the case
of any such Initial Security, (i) a Registration Statement covering such Initial
Security, or the Exchange Security to be exchanged for such Initial Security
(and, in the case of any Resale Security, any resale thereof), has been declared
effective and such Initial Security has been disposed of or exchanged (or, in
any case where such Registration Statement covers the resale of Resale
Securities, such Initial Security has been Exchanged and the Resale Security
received therefor has been resold), as the case may be, in accordance with such
effective Registration Statement, (ii) such Initial Security is sold in
compliance with Rule 144 or would be permitted to be sold pursuant to Rule
144(k), (iii) such Initial Security shall have
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been otherwise transferred and a new certificate therefor not bearing a legend
restricting further transfer shall have been delivered by or on behalf of the
Issuers and such Initial Security shall be trade able by each holder thereof
without restriction under the Securities Act or the Exchange Act and without
material restriction under the applicable blue sky or state securities laws or
(iv) such Initial Security ceases to be outstanding.
"Registration Statement" shall mean any registration statement
(including any Shelf Registration Statement) of the Issuers that covers any of
the Registrable Securities or the Exchange Securities, as the case may be,
pursuant to the provisions of this Agreement, including the Prospectus which is
part of such Registration Statement, amendments (including post-effective
amendments) and supplements to such Registration Statement and all exhibits and
appendices to any of the foregoing. For purposes of the foregoing, unless the
context requires otherwise, a Registration Statement for an Exchange Offer shall
not be deemed to cover Registrable Securities held by a Restricted Person
unless such Registration Statement covers the resale of Resale Securities to be
received by such Restricted Person pursuant to such Exchange Offer and any such
Initial Securities shall continue to be Registrable Securities.
"Resale Initial Purchaser" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Resale Securities" shall mean any Exchange Security received by a
Restricted Person pursuant to an Exchange Offer, and at all times subsequent
thereto, until, subject to the time periods set forth herein, such Exchange
Security has been resold by such Restricted Person.
"Restricted Person" shall mean (a) any Affiliate of the Issuers, (b)
any Initial Purchaser or (c) any Affiliate of any Initial Purchaser (other than
Affiliates of such Initial Purchaser that (i) are acquiring Exchange Securities
in the ordinary course of business and do not have an arrangement with any
Person to distribute Exchange Securities and (ii) may trade such Exchange
Securities without restriction under the Securities Act).
"Rule 144" shall mean Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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"Rule 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in Section 2(b) of
this Agreement.
"Shelf Registration Statement" shall have the meaning set forth in
Section 3(b) of this Agreement.
"Special Counsel" shall mean Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel to the Initial Purchasers, or any other firm acceptable to
the Issuers, acting as special counsel to the holders of Registrable Securities
or Exchange Securities.
"Subsequent Shelf Registration Statement" shall have the meaning set
forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Trustee" shall mean The Bank of New York, its successors and any
successor trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
SECTION 2. Exchange Offer.
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(a) Unless the Issuers determine in good faith that the Exchange
Offer shall not be permissible under applicable law or Commission policy, the
Issuers shall prepare and cause to be filed with the Commission as soon as
reason ably practicable after the Closing Date, subject to Sections 2(b) and
2(c) of this Agreement, a Registration Statement (an "Exchange Offer
Registration Statement") for an offer to exchange (an "Exchange Offer") the
Registrable Securities (subject to Section 2(c)) for a like aggregate principal
amount of debt securities of the Issuers that are in all material respects
substantially identical to the Initial Securities (the "Exchange Securities")
(and which are entitled to the benefits of the Indenture, which shall be
qualified under the TIA in connection with such registration, or a trust
indenture which is substantially identical in all material respects to the
Indenture), other than (i) such changes to the Indenture or any such
substantially identical indenture as the Trustee and the Issuers may deem
necessary in connection with the Trustee's rights and duties or to comply with
any requirements of the Commission to effect or maintain the qualification
thereof under the TIA and (ii) such changes relating to restrictions on transfer
set forth in the Indenture. The Exchange Offer shall be registered under the
Securities Act on the appropriate form of Registration Statement and shall
comply with all applicable tender offer rules and regulations under the Exchange
Act and with all other applicable laws. Subject to the terms and limitations of
Section 2(c), such Exchange Offer Registration Statement may also cover any
resales of Exchange Securities by any Restricted Person, in the manner or
manners designated by them which, in any event, is reasonably acceptable to the
Issuers.
The Issuers shall use their reasonable best efforts to (i) cause the
Exchange Offer Registration Statement to become effective under the Securities
Act on or prior to the Effective Date, (ii) keep the Exchange Offer open for a
period of not less than the shorter of (A) the period ending when the last
remaining Initial Security is tendered into the Exchange Offer and (B) 30 days
from the date notice is mailed to the holders of Initial Securities (provided
that in no event shall such period be less than the period required under
applicable Federal and state securities laws), and (iii) maintain such Exchange
Offer Registration Statement continuously effective for a period (the "Exchange
Period") of not less than the longer of (A) the period until the consummation of
the Exchange Offer and (B) 120 days after effectiveness of the Exchange Offer
Registration Statement, provided however, that in the event that all resales of
Exchange Securities (including, subject to the time periods set forth herein,
any Resale Securities and including, subject to the time periods set forth
herein, any resales by broker-dealers that receive Exchange Securities for their
own account pursuant to the Exchange Offer) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration
Statement need
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not remain continuously effective for the period set forth in clause (B) above.
Upon con summation of the Exchange Offer, the Issuers shall deliver to the
Trustee under the Indenture for cancellation all Initial Securities tendered by
the holders thereof pursuant to the Exchange Offer and not withdrawn prior to
the date of consummation of the Exchange Offer. Each Restricted Person shall
notify the Issuers promptly after reselling all Resale Securities held by such
Restricted Person which are covered by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the
Exchange Offer (other than any Restricted Person) shall be required as a
condition to participating in the Exchange Offer to represent that (i) it is not
an Affiliate of the Issuers, (ii) any Exchange Securities to be received by it
shall be acquired in the ordinary course of its business and (iii) that at the
time of the consummation of the Exchange Offer it shall have no arrangement with
any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. Upon consummation of an Exchange
Offer in accordance with this Section 2 and compliance with the other provisions
of this Section 2, the Issuers shall, subject to Sections 2(b) and 2(c), have no
further obligation to register Registrable Securities pursuant to Section 3(a)
of this Agreement; provided that the other provisions of this Agreement shall
continue to apply as set forth in such provisions.
(b) In the event that the Issuers reasonably determine in good faith
that (i) the Exchange Securities would not, upon receipt in the Exchange Offer
by any holder of Registrable Securities (other than any Restricted Person and
other than any holder who is not acquiring such Exchange Securities in the
ordinary course of business or who has an arrangement with any person to
participate in the distribution of such Exchange Securities), be tradeable by
each holder thereof without restriction under the Securities Act and the
Exchange Act and without restriction under applicable blue sky or state
securities laws, (ii) after conferring with counsel, the Commission is unlikely
to permit the Exchange Offer Registration Statement to become effective prior to
the Effective Date (except in the circumstances set forth in Section 2(c)) or
(iii) the Exchange Offer may not be made in compliance with applicable laws,
then the Issuers shall promptly deliver notice thereof (the "Shelf Notice") to
the holders of the Registrable Securities and the Trustee and shall thereafter
file an Initial Shelf Registration Statement pursuant to, and otherwise comply
with, the provisions of Section 3(a). Following the delivery of a Shelf Notice
in accordance with this Section 2(b) and compliance with Section 3(a), the
Issuers shall not have any further obligation under this Section 2.
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(c) In the event that the Issuers reasonably determine in good faith
that (i) the Exchange Securities would not, upon consummation of any resale
thereof by a Restricted Person to any Person other than another Restricted
Person, be tradeable by each holder thereof without restriction under the
Securities Act (other than applicable prospectus requirements) and the Exchange
Act and without restriction under applicable blue sky or state securities laws
or (ii) the Commission is unlikely to permit the Exchange Offer Registration
Statement to become effective prior to the Effective Date solely because such
Registration Statement covers resales of the Exchange Securities by Restricted
Persons, then the Issuers shall promptly deliver a Shelf Notice to the
Restricted Persons who are holders of Registrable Securities and to the Trustee,
and the Issuers shall thereafter file an Initial Shelf Registration Statement
with respect to any such Registrable Securities pursuant to, and otherwise
comply with, the provisions of Section 3(a); provided that such Initial Shelf
Registration Statement shall only cover resales of Registrable Securities by
Restricted Persons if a Shelf Notice is not then otherwise required to be
delivered pursuant to Section 2(b). Following the delivery of a Shelf Notice in
accordance with this Section 2(c) and compliance with Section 3(a), the Issuers
shall not have any further obligation under this Section 2 with respect to the
filing of an offer to exchange the Registrable Securities held by the Restricted
Persons (including, without limitation, any obligation to provide that an
Exchange Offer Registration Statement filed pursuant to Section 2(a) cover
resales of Exchange Securities by Restricted Persons); provided that the
provisions of this Section 2 shall otherwise remain in full force and effect
with respect to Registrable Securities held by any person other than a
Restricted Person.
SECTION 3. Shelf Registration; Registrable Securities. With respect
to the Registrable Securities, if a Shelf Notice is delivered in accordance with
Section 2(b) or 2(c) of this Agreement, then the Issuers shall comply with the
following provisions of this Section 3:
(a) Initial Shelf Registration. The Issuers shall prepare and cause
to be filed with the Commission a Registration Statement for an offering to be
made on a continuous basis covering all of the Registrable Securities (or, if a
Shelf Notice is delivered solely pursuant to Section 2(c), all of the
Registrable Securities held by any Restricted Persons) (the "Initial Shelf
Registration Statement"); provided, however, that no holder shall be entitled to
have its Registrable Securities covered by such Initial Shelf Registration
Statement unless such holder agrees in writing, within 10 Business Days after
actual receipt of a request therefrom, to be bound by all the provisions of this
Agreement applicable to such holder. No holder shall be entitled to the benefits
of Section 4 of this Agreement
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unless and until such holder shall have provided all information reasonably
requested by the Issuers (after conferring with counsel), and such holder shall
not be entitled to such benefits with respect to any period during which such
information was not provided. Each holder to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Issuers all
information required to be disclosed in order to make the information previously
furnished to the Issuers by such holder not materially misleading. The Initial
Shelf Registration Statement shall be an appropriate form permitting
registration of such Registrable Securities for resale by the holders thereof in
the manner or manners reasonably designated by them (but excluding any
Underwritten Offerings). The Issuers shall use their reasonable best efforts to
(A) cause the Initial Shelf Registration Statement to be declared effective
under the Securities Act on or prior to the Effective Date and (B) keep the
Initial Shelf Registration Statement continuously effective under the Securities
Act for a period of two years after the Closing Date (subject to extension
pursuant to the last paragraph of Section 5 and subject, with respect to
Registrable Securities held by Restricted Persons, to the limitations set forth
in Section 2(c)) (such two-year period, as it may be extended, being the
"Effective Period"), or such shorter period ending when (1) all Registrable
Securities covered by the Initial Shelf Registration Statement have been sold or
(2) a Subsequent Shelf Registration Statement covering all of such Registrable
Securities remaining unsold has been declared effective under the Securities Act
or (3) all Registrable Securities may be sold pursuant to subsection (k) of Rule
144.
Notwithstanding any other provision hereof, the Issuers may postpone
or suspend the filing or the effectiveness of a Registration Statement (or any
amendments or supplements thereto), if (1) such action is required by applicable
law, or (2) such action is taken by the Issuers in good faith and for valid
business reasons (not including avoidance of the Issuers' obligations
hereunder), including the acquisition or divestiture of assets, other pending
corporate developments, public filings with the Commission or other similar
events, so long as the Issuers promptly thereafter comply with the requirements
of Section 5(b) hereof, if applicable. The Effective Period shall be extended by
the number of days during which the effectiveness of a Registration Statement is
suspended.
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(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effective Period after the
Effective Date, the Issuers may attempt to obtain the withdrawal of any order
suspending the effectiveness thereof, and may amend such Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
applicable to the Initial Securities pursuant to Rule 415 covering all of such
Registrable Securities remaining unsold (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is declared effective,
the Issuers shall use their reasonable best efforts to keep such Shelf
Registration Statement continuously effective for a period after the date of
such effectiveness equal in length to the length of the Effective Period plus
the aggregate number of days from the date of the order suspending the
effectiveness of the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement to the date of the effectiveness of the Subsequent
Shelf Registration Statement. As used herein, the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statement.
SECTION 4. Additional Interest for Illiquidity.
(a) The Issuers acknowledge and agree that the Initial Purchasers
(and any subsequent holders of the Initial Securities) have acquired the Initial
Securities in reliance on the Issuers' covenant to use its reasonable best
efforts to (i) cause to become effective on or prior to the Effective Date (A)
the Exchange Offer Registration Statement or (B) an Initial Shelf Registration
Statement, and (ii) maintain the respective effectiveness of such Registration
Statements as described herein. The Issuers further acknowledge and agree that
the failure of the Issuers to fulfill such covenants will have an adverse effect
on the holders of the Initial Securities. There fore, the Issuers agree that
from and after the date on which any Illiquidity Event occurs, additional
interest (in addition to the interest otherwise payable with respect to the
Registrable Securities) shall accrue with respect to the Initial Securities
until but not including the date on which such Illiquidity Event shall cease to
exist (and provided no other Illiquidity Event with respect to any Initial
Securities shall then be continuing), at the rate of one half of one percent
(0.50%) per annum, which additional interest shall be payable by the Issuers to
the holders of all Initial Securities at the times, in the manner and subject to
the same terms and conditions set forth in the Indenture, as nearly as may be,
as though the interest rates provided in such Initial Securities had been
increased by one half of one percent (0.50%) per annum. Subject to the
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provisions of this Section 4, the Issuers agree that they shall be liable to the
holders of all Initial Securities for the payment of any and all additional
interest on the Initial Securities that shall accrue pursuant to this Section 4.
Any such additional interest accrued on any such Initial Securities
but unpaid on the date on which such interest ceases to accrue (the "Cure Date")
shall be due and payable on the first interest payment date following the next
record date following such Cure Date (or the record date occurring on such Cure
Date, if such Cure Date is a record date) to the holders of record of such
Initial Securities on such record date.
(b) The Issuers shall promptly notify the holders of the Initial
Securities and the Trustee of the occurrence of any Illiquidity Event of which
they have knowledge.
Notwithstanding the foregoing, the Issuers shall not be required to
pay the additional interest described in clause (a) of this Section 4 to a
holder with respect to the Registrable Securities held by such holder if the
applicable Illiquidity Event arises by reason of the failure of such holder to
provide such information as (i) the Issuers may reasonably request, with
reasonable prior written notice, for use in the Shelf Registration Statement or
any Prospectus included therein to the extent the Issuers reasonably determine
that such information is required to be included therein by applicable law, (ii)
the NASD or the Commission may request in connection with such Shelf
Registration Statement, or (iii) is required to comply with the agreements of
such holder contained in clause (a) of Section 3 to the extent compliance
thereof is necessary for the Shelf Registration Statement to be declared
effective.
SECTION 5. Registration Procedures. In connection with the
registration of any Registrable Securities or Exchange Securities pursuant to
Sections 2 and 3 hereof, the Issuers shall use their reasonable best efforts to
effect such registration to permit the sale of such Registrable Securities or
Exchange Securities in accordance with any permitted intended method or methods
of disposition thereof, and pursuant thereto the Issuers shall:
(a) prepare and cause to be filed with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2 and 3 of this
Agreement, and use their reasonable best efforts to cause each such Registration
Statement to become effective and remain effective for the applicable period as
provided herein; provided, however, that (i) during the period in which the
Initial Registration Statement is open for the
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Restricted Persons, the Issuers shall afford any Restricted Person which is a
holder of Registrable Securities or Exchange Securities and the Special Counsel,
upon such holder's written request to the Issuers, an opportunity to review
copies of all such documents proposed to be filed, and (ii) if such filing is
pursuant to Section 3, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto (including documents that would be
incorporated therein by reference after the initial filing of the Registration
Statement), the Issuers shall afford the Special Counsel for all holders of the
Registrable Securities covered by such Registration Statement an opportunity to
review copies of all such documents proposed to be filed;
(b) prepare and cause to be filed with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Registration Statement continuously effective for
the applicable period as provided herein; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented in
accordance with the intended methods of disposition by the sellers of
Registrable Securities covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to Section 3
hereof, notify the selling holders of Registrable Securities promptly after the
Issuers become aware thereof, and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or Prospectus or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Issuers of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities for offer or sale in
any jurisdiction, or the initiation of any proceeding for such purpose, (v) of
the existence of any fact known to the Issuers which results in such
Registration Statement or related Prospectus or any document incorporated
therein by reference containing any untrue statement
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of a material fact or omitting to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (which notice may be
accompanied by an instruction that such notice constitutes material non-public
information and to suspend the use of the prospectus until the requisite changes
have been made, and which instruction shall require that such holders shall not
communicate such material non-public information to any third party and shall
not sell or purchase, or offer to sell or purchase, any securities of the
Issuers after receipt of such notice) and (vi) if the Issuers reasonably
determines that the filing of a post-effective amendment to such Registration
Statement would be appropriate;
(d) if a Shelf Registration Statement is filed pursuant to Section
3, use its reasonable efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction and, if any such order is issued, to obtain the withdrawal of any
such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to Section
3, furnish to each selling holder of Registrable Securities who so requests (at
such holder's address set forth in the Securities Register) without charge, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(f) if a Shelf Registration Statement is filed pursuant to Section
3, deliver to each selling holder of Registrable Securities without charge, as
many copies of the Prospectus (including each preliminary prospectus) and each
amendment or supplement thereto as such persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Issuers hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of
the selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, register
or qualify, or cooperate with the selling holders of Registrable Securities, the
under writers, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale
15
under the securities or blue sky laws of such jurisdictions within the United
States as the selling holders reasonably request in writing (provided that, if
Registrable Securities are offered other than through an Underwritten Offering,
the Issuers agrees to cause its counsel to perform blue sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(g)); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective; and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Issuers will not be required to qualify as a foreign corporation, or to
do business, to file a general consent or take any action which would subject it
to service of process in any jurisdiction or take any action which would subject
itself to taxation in any such jurisdiction;
(h) if a Shelf Registration Statement is filed pursuant to Section
3, cooperate with the Trustee and the selling holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company, and enable such Registrable Securities to be in such
authorized denominations and registered in such names as the holders may
reasonably request at least three Business Days prior to any such sale;
(i) if a Shelf Registration Statement is filed pursuant to Section
3, upon the occurrence of any event contemplated by Section 5(c), prepare a
supplement or post-effective amendment to the Registration Statement or a
supplement to 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 an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Issuers so notify the holders to
suspend the use of the Prospectus after the occurrence of such an event, the
holders shall suspend use of the Prospectus, and not communicate such material
non-public information to any third party, and not sell or purchase, or offer to
sell or purchase, any securities of the Issuers, until the Issuers have amended
or supplemented the Prospectus to correct such misstatement or omission;
(j) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to continue to be rated by the
rating agencies that
16
initially rated the Initial Securities during the period that the Registration
Statement is required hereunder to remain effective (it being acknowledged,
however, that the foregoing shall not be deemed to require the Issuers to
maintain the rating of such Registrable Securities at the rating given the
Initial Securities);
(k) prior to the effective date of the first Registration Statement
relating to the Registrable Securities or the Exchange Securities, as the case
may be, (i) provide the Trustee with printed certificates for such securities in
definitive form or in a global form eligible for deposit with The Depository
Trust Company and (ii) provide a CUSIP number for such Registrable Securities or
Exchange Securities represented by such certificates;
(l) if a Shelf Registration Statement is filed pursuant to Section
3, enter into such reasonably required agreements and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of such Registrable Securities;
(m) in the event of any Underwritten Offering (which shall only be
undertaken at the request of a majority in interest of the holders of
Registrable Securities), if a Shelf Registration Statement is filed pursuant to
Section 3, make available prior to the filing thereof for inspection by a
representative of the holders of a majority in aggregate principal amount of the
Registrable Securities being sold, and the Special Counsel, on the one hand, or
underwriter on the other hand (collectively, the "Inspectors"), during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Issuers and its subsidiaries (collectively, the
"Records"), and cause the officers, directors and employees of the Issuers and
its subsidiaries to supply all relevant information as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities; provided, however, that, as a condition to supplying such
information, the Issuers shall receive an agreement in writing from the Special
Counsel agreeing that any information that is designated in writing by the
Issuers, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Inspector (other than as to
holders of Registrable Securities) and by any holders of Registrable Securities
receiving such information, unless (i) disclosure of such information is
required pursuant to applicable law or by court or administrative order, (ii)
disclosure of such information is, in the reasonable opinion of counsel to the
Issuers, necessary to avoid or correct a misstatement or omission of a material
fact in the Registration Statement, Prospectus or any supplement or
post-effective amendment thereto or disclosure is otherwise required by law,
(iii) such information becomes generally available to the public other than as a
result of a disclosure by any Inspector or any such holder of Registrable
Securities in
17
violation of this Section 5(m) or (iv) such information is approved for release
by the Issuers, in writing;
(n) use its best efforts to cause the Indenture or the trust
indenture provided for in Section 2, as the case may be, to be qualified under
the TIA not later than the effective date of such Registration Statement; and,
in connection therewith, cooperate with the Trustee under the Indenture and the
holders of the Registrable Securities to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with the
terms of the TIA and execute, and use its best efforts to cause such 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 Commission to enable the
Indenture or the trust indenture provided for in Section 2 to be so qualified in
a timely manner;
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5,
references to a Shelf Registration Statement, including a Shelf Registration
Statement filed pursuant to Section 3, shall be deemed to include any
Registration Statement, filed pursuant to Section 2, which covers, for the
period set forth therein, resales of Exchange Securities held by Restricted
Persons as provided in Section 2, and, in connection with such resales such
Restricted Persons shall be entitled to exercise all rights, receive all notices
and copies of documents, and otherwise receive all benefits afforded to sellers
or holders of Registrable Securities under this Section 5 in connection with a
Shelf Registration Statement. Without limiting the generality of the foregoing,
the Issuers agree to fulfill their obligations set forth in Sections 5(a), (b),
(c), (d), (e), (f), (h), (i), (l) and (m) with respect to any such Registration
Statement filed pursuant to Section 2 insofar as it covers such resales.
The Issuers may require each seller of Registrable Securities as to
which any registration is being effected, as a condition thereto, to furnish to
the Issuers such information regarding the holder and the distribution of such
Registrable Securities as the Issuers may, from time to time, request in
writing, including without limitation stating that (i) it is not an Affiliate of
the Issuers, (ii) the amount of Registrable Securities held by such holder prior
to the Exchange Offer, (iii) the amount of Registrable Securities owned by such
holder to be exchanged in the Exchange Offer and representing that such holder
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 Exchange
Securities to be issued,
18
and (iv) it is acquiring the Exchange Securities in its ordinary course of
business and to covenant and agree to promptly notify the Issuers if any such
information so provided by such seller ceases to be true and correct and will
promptly thereafter furnish the Issuers with corrected information. The Issuers
may exclude from such registration the Registrable Securities of any Person who
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Issuers of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(v) or 5(c)(vi) hereof, such holder shall forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such holder is advised in writing (the "Advice") by the Issuers
that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so directed by the
Issuers, such holder will deliver to the Issuers (at its expense) all copies in
its possession, other than permanent file copies then in such holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice, or certify in writing as to the destruction
thereof. In the event the Issuers shall give any such notice, the length of the
Effective Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) or (y) the Advice.
SECTION 6. Delivery of Prospectus; Notification Upon Resale. The
Initial Purchasers acknowledge that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its own
account in exchange for Registrable Securities pursuant to the Exchange Offer
must deliver a prospectus in connection with any resale of such Resale
Securities. By so acknowledging, such Initial Purchasers shall not be deemed to
admit that, by delivering a prospectus, it is an underwriter within the meaning
of the Securities Act.
The Initial Purchasers shall notify the Issuers promptly upon the
completion of the resale of the Resale Securities received by such Initial
Purchasers pursuant to the Exchange Offer.
19
SECTION 7. Registration Expenses.
The Issuers shall bear all expenses incurred in connection with the
performance of their obligations under Sections 2, 3 and 4; provided, however,
that the Issuers shall bear or reimburse the holders for the reasonable fees and
disbursements of only one counsel, the Special Counsel, in accordance with the
terms of the Purchase Agreement; provided, further, however, that in the event
of an Underwritten Offering, the Issuers shall not be responsible for any fees
and expenses of any underwriter, including any underwriting discounts and
commissions or any legal fees and expenses of counsel to the underwriters
(except for the reasonable fees and disbursements of counsel in connection with
state securities or blue sky qualification of any of the Registrable Securities
or the Exchange Securities).
SECTION 8. Indemnification and Contribution.
(a) The Issuers agree to (A) indemnify and hold harmless each holder
of Registrable Securities (including any Initial Purchaser which holds
Registrable Securities, including Resale Securities, for its own account (each,
a "Resale Initial Purchaser") and each Person, if any, who controls any such
Person within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee or agent of each such Person (each a "Holder
Indemnified Party") against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them are subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement covering Registrable Securities held by such person
or any Prospectus relating to any such Registration Statement, or any amendment
thereof or supplement thereto and all documents incorporated by reference
therein, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not misleading, and (B)
reimburse each such Holder Indemnified Party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuers will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or
20
Prospectus, or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with written information relating to such holder provided by
such holder to the Issuers specifically for use therein (collectively, the
"Holder Information"); provided, further, however, that the indemnity
obligations arising out of this Section 8 with respect to any untrue statement
or alleged untrue statement or omission or alleged omission made in any
preliminary Prospectus shall not inure to the benefit of any holder or any
controlling Person of such holder if such holder failed to send or deliver to
the Person asserting any such losses a copy of the final Prospectus with or
prior to the delivery of the written confirmation of the sale of the Registrable
Securities or the Exchange Securities, as the case may be, if a prospectus
relating to such Registrable Securities or Exchange Securities was required to
be delivered by such holder under the Securities Act, and such final Prospectus
would have cured the untrue statement or omission giving rise to such losses if
the Issuers had previously furnished copies thereof to such holder. This
indemnity agreement will be in addition to any liability which the Issuers may
otherwise have.
(b) As a condition to the inclusion of a holder's Registrable
Securities in a Registration Statement, such holder shall agree to (i) indemnify
and hold harmless the Issuers and each person who controls the Issuers within
the meaning of either the Securities Act or the Exchange Act, and each director,
officer, employee or agent of each such person, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
are subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in a Registration Statement covering Registrable
Securities held by such holder or any Prospectus relating to any such
Registration Statement or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, and (ii) reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; in each and every
case under clause (i) and (ii) above to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement or Prospectus or in any
amendment thereof or supplement thereto, in reliance upon and in conformity with
the Holder Information. This indemnity agreement will be in addition to any
liability which any such holder may otherwise have. In no event shall the
liability of any selling holder of Registrable Securities hereunder be greater
in amount than
21
the dollar amount of the proceeds (net of payment of all expenses) received by
such holder upon the sale (or, in the case of Resale Securities, the resale) of
the Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof (enclosing a copy of all papers served); but the omission
to so notify the indemnifying party (i) shall not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such omission results in the forfeiture by the
indemnifying party or material impairment of substantial rights and defenses and
(ii) shall not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligations
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party. After notice from the indemnifying
party to such indemnified party of its election to so assume the defense of such
claim or action, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
costs of investigation; provided that if (i) the defendants in any such action
include both the indemnified party and the indemnifying party, the indemnified
party shall have received the written opinion of counsel that representation of
both parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, or (ii) the indemnifying party shall not
have employed counsel for the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action,
then the indemnified party or parties shall have the right to select one firm of
separate counsel (in addition to the fees and expenses of local counsel) to
assert any separate legal defenses and to otherwise defend such action on behalf
of such indemnified party or parties. No indemnifying party shall be liable for
any settlement of any action or claim for monetary damages which an indemnified
party may effect without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in Section 8(a) or (b)
hereof is for any reason, other than as specified in such provisions,
unavailable to or insufficient to hold
22
harmless an indemnified party, then each indemnifying party shall contribute to
the aggregate losses, claims, damages or liabilities (or actions in respect
thereof) referred to in Section 8(a) or (b) hereof in such proportion as is
appropriate to reflect the relative fault and benefits to the Issuers on the one
hand and such 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 of the Issuers and such holders shall be
determined by reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any
untrue statement or omission. The obligations of the holders in this Section
8(d) are several in proportion to their respective obligations hereunder and not
joint. Notwithstanding the provisions of this Section 8(d), in no event shall
any holder of Registrable Securities be required to contribute any amount which
is in excess of (i) the aggregate principal amount of Initial Securities sold or
exchanged by such holder less (ii) the amount of any damages that such person
has otherwise been required to pay by reason of such alleged untrue statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each Holder Indemnified Party shall have the same rights to
contribution as a holder, and each person who controls the Issuers within the
meaning of either the Securities Act or the Exchange Act and each officer,
director, employee and agent of such person, shall have the same rights to
contribution as the Issuers, subject in each case to the applicable terms and
conditions of this Section 8(d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought; but the omission to so
notify such party or parties (x) shall not relieve the party or parties from
whom contribution may be sought from any liability under this paragraph (d)
unless and to the extent it did not otherwise learn of such action and such
omission results in the forfeiture by the party or parties from whom
contribution may be sought or material impairment of substantial rights and
defenses and (y) shall not, in any event, relieve such party or parties from any
obligations other than under this Section 8(d).
(e) The provisions of this Section 8 will remain in full force and
effect, regardless of any investigation made by or on behalf of any holder of
Registrable Securities, the Initial Purchasers, the Issuers or any of the
officers, directors or controlling
23
persons referred to in this Section 8 and will survive the sale (or, in the case
of Resale Securities, the resale) by a holder of Registrable Securities of such
Registrable Securities.
SECTION 9. Underwritten Registrations (If Any). No holder may
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Issuers, unless such holder (a)
agrees to sell such holder's Initial 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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
SECTION 10. Termination. In the event that no Initial Securities are
sold to the Initial Purchasers pursuant to the Purchase Agreement, this
Agreement shall automatically terminate, without liability on the part of any
party. Upon the fulfillment of all obligations on the part of the Issuers to
register the Initial Securities as set forth herein (including maintaining the
effectiveness of any applicable Registration Statements), this Agreement shall
terminate; provided that the provisions of Sections 7 and 8 hereof shall survive
any termination and remain in full force and effect.
SECTION 11. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered into, and shall not, on or after the date hereof, enter into,
any agreement with respect to their securities that is inconsistent with the
rights granted to the holders of Registrable Securities herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
holders of at least a majority of the then outstanding aggregate principal
amount of the Registrable Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2, of Exchange Securities); provided that, with
respect to any matter that directly or indirectly affects the rights of any
Restricted Person hereunder occurring within the period in which the Initial
Registration Statement is open for the Restricted Persons, the Issuers shall
obtain the written consent of each such Restricted Person against which such
amendment, modification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except
24
for the foregoing proviso), a waiver or consent to departure from the provisions
hereof with respect to a matter that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold or exchanged
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority in aggregate principal amount of the Registrable
Securities being sold or exchanged by such holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Resale Initial Purchasers and that does not
directly or indirectly affect the rights of holders of Registrable Securities or
Exchange Securities may be given by each of the Resale Initial Purchasers
affected thereby.
(c) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing and delivered by hand
delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Issuers in accordance with the
provisions of this Section 11(c), which address initially is, with respect
to the Initial Purchasers, at the address set forth in the Purchase
Agreement and thereafter at the address for such holders of Registrable
Securities set forth in the Security Register applicable to such
Registrable Securities; and
(ii) if to the Issuers, initially at the 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 11(c).
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier; and when received, if
telecopied.
25
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.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment or any consent by the Issuers thereto, subsequent holders of
Registrable Securities.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Each of the parties hereto hereby submits to
the non-exclusive jurisdiction of the Federal and State Courts of the Borough of
Manhattan in the City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is 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 and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement, together with the Purchase Agreement, supersedes
26
all prior agreements and understandings between the parties with respect to such
subject matter.
(j) Securities Held by the Issuers, etc. Whenever the consent or
approval of holders of a specified percentage of principal amount of Registrable
Securities is required hereunder, Registrable Securities held by the Issuers or
any of their Affiliates (other than subsequent holders of Registrable Securities
if such subsequent holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
(k) Joint and Several Liability. The obligations of the Issuers
under this Agreement are joint and several.
27
Please confirm that the foregoing correctly sets forth this
agreement between the Issuers and you.
Very truly yours,
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and Secretary
LSP BATESVILLE FUNDING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and Secretary
Accepted in New York, New York
May 21, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
SCOTIA CAPITAL MARKETS (USA) INC.
TD SECURITIES (USA) INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
Signature Page to Registration Rights Agreement
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275624.04-New YorkS7A
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Signature Page to Registration Rights Agreement
