EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into this 6th day of July, 2000 among Reliant Energy Resources Corp.,
a Delaware corporation (the "Company"), and Banc of America Securities LLC
("BofA"), Credit Suisse First Boston Corporation and Deutsche Bank Securities
Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June
29, 2000 among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $325,000,000 principal amount of the Company's
8.125% Notes due 2005, Series A (the "Securities"). 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 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:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Additional Interest" shall have the meaning set forth in
Section 2.5 hereof.
"BofA" shall have the meaning set forth in the preamble.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The
City of New York are authorized or obligated by law or executive order to
close.
"Closing Date" shall mean the Time of Delivery as defined
in the Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
and shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or
any other depositary for the Securities appointed by the Company; PROVIDED,
HOWEVER, that such depositary must have an address in the Borough of
Manhattan, in the City of New York.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities pursuant to Section
2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if applicable, on
another appropriate form), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2.1 hereof.
"Exchange Securities" shall mean the 8.125% Notes due 2005,
Series B issued by the Company under the Indenture containing terms identical
to the Securities in all material respects (except for references to certain
interest rate provisions, restrictions on transfers and restrictive legends),
to be offered to Holders of Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture and each Participating Broker-Dealer that
holds Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture, dated as of February
1, 1998, between the Company and Chase Bank of Texas, National Association,
as trustee, as supplemented by Supplemental Indenture No. 3 thereto dated as
of July 6, 2000 and as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; PROVIDED that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the Company
shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any Initial
Purchaser, and any other broker-dealer which makes a market in the Securities
and exchanges Registrable Securities in the Exchange Offer for Exchange
Securities.
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"Person" shall mean any individual, corporation,
partnership, joint venture, trust, limited liability company, unincorporated
organization or government or any 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
any such 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.
"Registrable Securities" shall mean the Securities;
PROVIDED, HOWEVER, that Securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such
Securities have been sold to the public pursuant to Rule 144 under the 1933
Act under circumstances in which any legend borne by such Securities relating
to restrictions on transferability thereof, under the 1933 Act or otherwise,
is removed or may be sold pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
shall have ceased to be outstanding or (iv) the Exchange Offer is consummated
(except in the case of Securities purchased from the Company and continued to
be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this Agreement,
including, without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and filing
fees, including, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to be
retained by any holder of Registrable Securities in accordance with the rules
and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, (vii) the fees and expenses of the Trustee, and any escrow agent
or custodian, (viii) the reasonable fees and disbursements of one firm of
legal counsel selected by the Majority Holders to represent the Holders of
Registrable Securities and (ix) any reasonable fees and
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disbursements of the underwriters customarily required to be paid by issuers
or sellers of securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company which covers any of the Exchange Securities 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.
"SEC" shall mean the United States Securities and Exchange
Commission or any successor agency or governmental body performing the
functions currently performed by the United States Securities and Exchange
Commission.
"Securities" shall have the meaning set forth in the
preamble.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section
2.2 of this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the 1933 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 trustee with respect to the
Securities under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
2.1 EXCHANGE OFFER. The Company shall, for the benefit of
the Holders, at the Company's cost, use its reasonable best efforts (A) to
file with the SEC the Exchange Offer Registration Statement not later than
120 calendar days following the original issuance of the Securities with
respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities, of a like principal
amount of Exchange Securities, (B) to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act within 180 calendar
days of the original issuance of the Securities, (C) to keep the Exchange
Offer Registration Statement effective until the closing of the Exchange
Offer and (D) unless the Exchange Offer would not be permitted by applicable
law or SEC policy, to cause the Exchange Offer to be consummated within 210
calendar days following the original issuance of the Securities. The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
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commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities
for Exchange Securities (assuming that such Holder (A) is not an affiliate of
the Company within the meaning of Rule 405 under the 1933 Act, (B) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company or one of its Affiliates for its own account, (C) acquired the
Exchange Securities in the ordinary course of such Holder's business and (D)
has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial portion of the
several states of the United States.
In connection with the Exchange Offer, the Company will:
(A) as promptly as practicable after the Exchange Offer
Registration Statement has been declared effective by the SEC, mail to
each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(B) keep the Exchange Offer open for acceptance for a period
of not less than 20 Business 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");
(C) utilize the services of the Depositary for the Exchange
Offer;
(D) permit Holders to (i) withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Time) on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement that such
Holder is withdrawing such Holder's election to have such Securities
exchanged and (ii) tender Registrable Securities according to customary
guaranteed delivery procedures if such Holder cannot deliver such
Registrable Securities or complete the procedures relating thereto on a
timely basis prior to 5:00 p.m. (Eastern Time) on the last Business Day
of the Exchange Period;
(E) notify each Holder that any Registrable Security not
tendered 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
(F) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
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As soon as practicable after the close of the Exchange Offer, the
Company shall:
(A) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(B) deliver or cause to be delivered all Registrable
Securities accepted for exchange to the Trustee for cancellation; and
(C) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable Securities, from
the date of original issuance. The Exchange Offer shall not be subject to any
conditions, other than (A) that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (B) the valid tendering of
Registrable Securities in accordance with the Exchange Offer, (C) that each
Holder of Registrable Securities exchanged in the Exchange Offer shall have
represented that (i) it is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act, (ii) it is not a broker-dealer tendering
Registrable Securities acquired directly from the Company or one of its
Affiliates for its own account, (iii) all of the Exchange Securities to be
received by it shall be acquired in the ordinary course of its business and
(iv) at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the 0000 Xxx) of the Exchange Securities,
and shall have made such other representations as may be reasonably necessary
under applicable SEC rules, regulations or interpretations to render the use
of Form S-4 or other appropriate form under the 1933 Act available and (D)
that no action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency with respect to the Exchange
Offer which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer. The
Company shall use its reasonable best efforts to inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange
Offer is made, and the Initial Purchasers shall have the right, subject to
applicable securities laws, to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
2.2 SHELF REGISTRATION. In the event that (A) the Company
reasonably determines that changes in law, SEC rules or regulations or
applicable interpretations thereof by the staff of the SEC do not permit the
Company to effect the Exchange Offer as contemplated by Section 2.1 hereof,
(B) for any other reason, the Exchange Offer is not consummated within 210
calendar days after the original issuance of the Securities or (C) an Initial
Purchaser notifies the Company within 20 Business Days following the
consummation of the Exchange Offer that (i) it is not permitted by applicable
law, SEC rules or regulations or applicable interpretations thereof
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by the staff of the SEC to participate in the Exchange Offer, (ii) it may not
resell Exchange Securities with the Prospectus included as part of the
Exchange Offer Registration Statement or (iii) it is a broker-dealer and owns
Registrable Securities acquired directly from the Company or one of the
Company's Affiliates, then in case of each of clauses (A) through (C) the
Company shall, at its cost, in lieu of effecting (or, in the case of clause
(C), in addition to effecting) the registration of the Exchange Securities
pursuant to the Exchange Offer Registration Statement:
(A) as promptly as practicable, file with the SEC, and
thereafter shall use its reasonable best efforts to cause to be
declared effective no later than 210 calendar days after the original
issuance of the Securities, a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by
the Majority Holders participating in the Shelf Registration and set
forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming a part thereof to be usable by Holders for a period
of two years from the date of the original issuance of the Securities,
or for such shorter period that will terminate when all Registrable
Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto or (ii) are distributed to the public pursuant to
Rule 144 of the Securities Act or are saleable pursuant to Rule 144(k)
under the Securities Act without any limitations under clauses (c),
(e), (f) and (h) of Rule 144 (or any successor rule thereof); PROVIDED,
HOWEVER, that the Company shall not be obligated to keep the Shelf
Registration Statement effective or to permit the use of any Prospectus
forming a part of the Shelf Registration Statement if (i) the Company
determines, in its reasonable judgment, upon advice of counsel that the
continued effectiveness and use of the Shelf Registration Statement
would (x) require the disclosure of material information which the
Company has a BONA FIDE business reason for preserving as confidential
or (y) interfere with any financing, acquisition, corporate
reorganization or other material transaction involving the Company or
any of its subsidiaries; and PROVIDED, FURTHER, that the failure to
keep the Shelf Registration Statement effective and usable for offers
and sales of Registrable Securities for such reasons shall last no
longer than 45 consecutive calendar days or no more than an aggregate
of 90 calendar days during any consecutive twelve-month period
(whereafter a Registration Default, as hereinafter defined, shall
occur) and (ii) the Company promptly thereafter complies with the
requirements of Section 3(K) hereof, if applicable; any such period
during which the Company is excused from keeping the Shelf Registration
Statement effective and usable for offers and sales of Registrable
Securities is referred to herein as a "Suspension Period"; a Suspension
Period shall commence on and include the date that the Company gives
notice to the Holders that the Shelf Registration Statement is no
longer effective or the Prospectus included therein is no longer usable
for offers and sales of Registrable Securities as a result of the
application of the proviso of the foregoing sentence and shall end on
the earlier to occur of the date on which each seller of Registrable
Securities covered by the Shelf Registration Statement either receives
the copies of the supplemented or amended Prospectus contemplated by
Section 3(K) hereof or is advised in writing by the Company that use of
the Prospectus may be resumed; and
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(C) use its reasonable best efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) subject to Section 2.2(B) above, any
Prospectus forming a part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(B) below, and 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.
2.3 EXPENSES. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1 or 2.2
hereof. Each Holder shall pay all 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.
2.4 EFFECTIVENESS.
(A) 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 the Company voluntarily
takes any action (other than any action specifically permitted by Section
2.2(B) hereof) that would, or omits to take any action which 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 as
and to the extent contemplated hereby, unless such action is required by
applicable law.
(B) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof 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 an
Exchange Offer Registration Statement or 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 become effective during the period of
such interference, until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
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2.5 INTEREST. In the event that (A) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 120th
calendar day following the date of original issuance of the Securities, (B)
the Exchange Offer Registration Statement is not declared effective on or
prior to the 180th calendar day following the date of original issuance of
the Securities, (C) the Exchange Offer is not consummated or a Shelf
Registration Statement is not declared effective, in either case, on or prior
to the 210th calendar day following the date of original issuance of the
Securities or (D) the Exchange Offer Registration Statement or the Shelf
Registration Statement is filed and declared effective but shall thereafter
either be withdrawn by the Company, except as specifically permitted by
Section 2.2(B) hereof, or becomes subject to an effective stop order
suspending the effectiveness of such registration statement, in each case,
without being succeeded within 30 calendar days by an amendment thereto or an
additional registration statement filed and declared effective (each such
event referred to in clauses (A) through (D) above, a "Registration
Default"), the interest rate borne by the Registrable Securities shall be
increased ("Additional Interest") by one-fourth of one percent (0.25%) per
annum upon the occurrence of each Registration Default, which rate will
increase by an additional one-fourth of one percent (0.25%) per annum if such
Registration Default has not been cured within 90 calendar days after
occurrence thereof and continuing until all Registration Defaults have been
cured, PROVIDED that the aggregate amount of any such increase in the
interest rate on the Registrable Securities shall in no event exceed one
percent (1.0%) per annum; and PROVIDED, FURTHER, that if the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th
calendar day following the original issuance of the Securities and the
Company shall request Holders of Securities to provide information for
inclusion in the Shelf Registration Statement, then Registrable Securities
owned by Holders who do not deliver such information to the Company or who do
not provide comments on the Shelf Registration Statement when requested by
the Company will not be entitled to any such increase in the interest rate
for any calendar day after the 210th calendar day following the date of
original issuance of the Securities. All accrued Additional Interest shall be
paid to Holders of Registrable Securities in the same manner and at the same
time as regular payments of interest on the Registrable Securities. Following
the cure of all Registration Defaults, the accrual of Additional Interest
will cease and the interest rate on the Registrable Securities will revert to
the original rate.
3. REGISTRATION PROCEDURES. In connection with the obligations
of the Company with respect to Registration Statements pursuant to Sections
2.1 and 2.2 hereof, the Company shall:
(A) prepare and file with the SEC a Registration
Statement, within the relevant time period specified in Section 2, on
the appropriate form under the 1933 Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (iii) comply as to form in all material respects
with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and use its reasonable
best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(B) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to
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keep such Registration Statement effective for the applicable period;
and cause each Prospectus to be supplemented 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 1933 Act
and comply with the provisions of the 1933 Act, the 1934 Act and the
rules and regulations thereunder applicable to them with respect to
the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders
thereof (including sales by any Participating Broker-Dealer);
(C) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that
the distribution of Registrable Securities will be made in accordance
with the method selected by the Majority Holders participating in the
Shelf Registration, (ii) furnish to each Holder of Registrable
Securities 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, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable
Securities and (iii) hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto, save and except during any Suspension Period;
(D) use its reasonable best efforts to register or
qualify the Registrable Securities under such state securities or
blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement
is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each
such Holder and underwriter to consummate the disposition in each
such jurisdiction of such Registrable Securities owned by such
Holder; PROVIDED, HOWEVER, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(D) or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction
where it is not then so subject;
(E) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has
notified the Company that it is utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(F)
hereof and, if requested by such Holder or Participating Broker-Dealer,
confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for
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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 initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of the Shelf Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations
and warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during
the period the Shelf Registration Statement is effective which makes
any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to
make the statements therein not misleading, (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Securities,
as the case may be, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(F) (1) in the case of the Exchange Offer Registration
Statement (a) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to BofA on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Securities to be received by such broker-dealer in the
Exchange Offer, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (b) 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 each
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,
(c) hereby consent 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 SEC, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto for up to 180
calendar days following the Exchange Offer, save and except during any
Suspension Period invoked with respect to such Prospectus and (d)
include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer (i) the following provision:
11
"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 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer,"
and (ii) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (i) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and (2) in the case of any Exchange
Offer Registration Statement, the Company agrees to deliver to any
Participating Broker-Dealers upon the effectiveness of the Exchange
Offer Registration Statement (a) an opinion of counsel or opinions of
counsel substantially in the form attached hereto as Exhibit A, (b)
officers' certificates substantially in the form customarily delivered
by the Company in its public offerings of debt securities and (c) a
comfort letter or comfort letters in customary form to the extent
permitted by Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (or if such a comfort letter
is not permitted, an agreed upon procedures letter in customary form)
from the Company's independent certified public accountants (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 are, or are required to be, included in
the Registration Statement) at least as broad in scope and coverage as
the comfort letter or comfort letters delivered to the Initial
Purchasers in connection with the initial sale of the Securities to the
Initial Purchasers;
(G) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable
Securities, copies of any comment letters received from the SEC or
any other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus
or for additional information;
(H) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
as soon as practicable and provide prompt notice to legal counsel for
the Holders of the withdrawal of any such order;
(I) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any, without
charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements
and schedules (without documents incorporated therein by reference and
all exhibits thereto, unless requested);
(J) 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 to the extent not held with the Depositary
12
through Cede & Co., to remove any restrictive legends, and enable such
Registrable Securities to be 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 three Business Days prior to the closing of any sale of
Registrable Securities;
(K) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Sections 3(E)(ii), (iii), (v), (vi) and (vii) hereof
and subject to the provisions of the paragraph immediately following
Section 3(T) hereof, as promptly as practicable after the occurrence
of such an event, use its reasonable best efforts to prepare a
supplement or post-effective amendment to the 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 or
Participating Broker-Dealers, such Prospectus will not contain at the
time of such delivery any 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
or will remain so qualified. At such time as such public disclosure
is otherwise made or the Company determines that such disclosure is
not necessary, in each case to correct any misstatement of a material
fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish
each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(L) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(M) unless the Indenture, as its relates to the Exchange
Securities or the Registrable Securities, as the case may be, has
already been so qualified, use its best efforts to (i) cause the
Indenture to be qualified under the TIA in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders 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 (iii) execute, and use its 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 the Indenture to be so qualified in a timely manner;
(N) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions in order to expedite or facilitate
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 an underwritten registration:
13
(i) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as has been
customarily made by the Company to underwriters in similar
offerings of debt securities of the Company;
(ii) obtain opinions of counsel of the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be 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 sales of securities or underwritten offerings of the
Company;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants (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 are, or are required to be, included in the
Registration Statement) addressed to the underwriters, if any,
and use reasonable efforts to have such letter addressed to
the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accounts), such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings of the
Company;
(iv) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may
be reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority in principal
amount of the Registrable Securities being sold and the
managing underwriters, if any;
the above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the
extent required thereunder;
(O) in the case of a Shelf Registration or if a
Prospectus is required to be delivered by any Participating
Broker-Dealer in the case of an Exchange Offer, make available for
inspection by representatives of the Holders of the Registrable
Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating
Broker-Dealer and any counsel or accountant retained by any of the
foregoing, all financial and other records, pertinent corporate
documents and
14
properties of the Company reasonably requested by any such persons,
and cause the respective officers, directors, employees and any other
agents of the Company to supply all information reasonably requested
by any such representative, underwriter, special counsel or
accountant in connection with a Registration Statement, and make such
representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
PROVIDED, HOWEVER, that such persons shall first agree in writing
with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by
such persons, unless (i) disclosure of such information is required
by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of
the Shelf Registration Statement or the use of any Prospectus), (iii)
such information becomes generally available to the public other than
as a result of a disclosure or failure to safeguard such information
by such persons or (iv) such information becomes available to such
persons from a source other than the Company and its subsidiaries and
such source is not known by such persons to be bound by a
confidentiality agreement; and PROVIDED, FURTHER, that the foregoing
inspection and information gathering shall be coordinated by (x) the
managing underwriter in connection with any underwritten offering
pursuant to a Shelf Registration, (y) the Holder designated by the
Majority Holders in connection with any nonunderwritten offering
pursuant to a Shelf Registration or (z) the Participating
Broker-Dealer holding the largest amount of Registrable Securities in
the case of use of a Prospectus included in the Exchange Offer
Registration Statement, together with one counsel designated by and
on behalf of such persons;
(P) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Initial Purchasers and to counsel to the Holders of Registrable
Securities and make such changes in any such document prior to the
filing thereof as the Initial Purchasers or counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise
required by applicable law, not file any such document in a form to
which the Initial Purchasers on behalf of the Holders of Registrable
Securities and counsel to the Holders of Registrable Securities shall
not have previously been advised and furnished a copy of or to which
the Initial Purchasers on behalf of the Holders of Registrable
Securities or counsel to the Holders of Registrable Securities shall
reasonably object (which objection shall be made within a reasonable
period of time), and make the representatives of the Company available
for discussion of such documents as shall be reasonably requested by
the Initial Purchasers; and (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel for the Holders and
to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if
15
any, make such changes in any such document prior to the filing
thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such
document in a form to which the Majority Holders, the Initial
Purchasers on behalf of the Holders of Registrable Securities,
counsel for the Holders of Registrable Securities or any underwriter
shall not have previously been advised and furnished a copy of or to
which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object
(which objection shall be made within a reasonable period of time),
and make the representatives of the Company available for discussion
of such document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders, counsel for the Holders of Registrable Securities or any
underwriter;
(Q) in the case of a Shelf Registration, use its
reasonable best efforts to cause the Registrable Securities to be
rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters
of an underwritten offering of Registrable Securities, if any, unless
the Exchange Securities or the Registrable Securities, as the case
may be, are already so rated or unless the Company has obtained such
ratings for its long-term debt securities generally;
(R) otherwise comply with all applicable rules and
regulations of the SEC and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 thereunder;
(S) cooperate and assist in any filings required to be
made with the NASD and, in the case of a Shelf Registration, in the
performance of any due diligence investigation by any underwriter and
its counsel (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of
the NASD); and
(T) upon consummation of an Exchange Offer, obtain a
customary 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
substantially to the effect that (i) the Company has duly authorized,
executed and delivered the Exchange Securities and the related
supplemental indenture and (ii) each of the Exchange Securities and
related indenture constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Securities to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
16
In the case of a Shelf Registration Statement, each Holder agrees,
and in the case of the Exchange Offer Registration Statement, each
Participating Broker-Dealer agrees, that, upon receipt of any notice from the
Company of (a) the happening of any event or the discovery of any facts, each
of the kind described in Sections 3(E)(ii), (iii), (iv) or (v) hereof or (b)
the Company's determination, in its reasonable judgment, upon advice of
counsel, that the continued effectiveness and use of the Shelf Registration
Statement or the Prospectus included in the Shelf Registration Statement or
the Exchange Offer Registration Statement would (x) require the disclosure of
material information, which the Company has a BONA FIDE business reason for
preserving as confidential, or (y) interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the Company
or any of its subsidiaries, such Holder or Participating Broker-Dealer, as the
case may be, will forthwith discontinue disposition of Registrable Securities
pursuant to such Registration Statement or Prospectus until the receipt by
such Holder or Participating Broker-Dealer, as the case may be, of either
copies of the supplemented or amended Prospectus contemplated by Section 3(K)
hereof, and, if so directed by the Company, such Holder or Participating
Broker-Dealers will deliver to the Company (at its expense) all copies in its
possession of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice, or notice in writing from the Company that
such Holder or Participating Broker-Dealers may resume disposition of
Registrable Securities pursuant to such Registration Statement or Prospectus.
If the Company shall give any such notice described in clause (a) above to
suspend the disposition of Registrable Securities pursuant to a Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Sections 3(E)(ii), (iii), (iv) and (v)
hereof, the Company shall be deemed to have used its reasonable best efforts
to keep such Registration Statement effective during such Suspension Period
provided that the Company shall use its reasonable best efforts to file and
have declared effective (if an amendment) as soon as practicable an amendment
or supplement to such Registration Statement. The Company shall extend the
period during which such Registration Statement shall be maintained effective
or the Prospectus used pursuant to this Agreement by the number of calendar
days during the period from and including the date of the giving of the notice
described in clauses (a) and (b) above to and including the date when the
Holders or Participating Broker-Dealers shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions or
notification that they may resume such disposition under an existing
Prospectus.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be acceptable to the Company.
No Holder of Registrable Securities 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 questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
17
4. INDEMNIFICATION; CONTRIBUTION.
(A) In the event of a Shelf Registration Statement or in
connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Participating
Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter") and
each Person, if any, who controls any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4
Persons"), against any losses, claims, damages, liabilities or expenses
(including the reasonable cost of investigating and defending against any
claims therefore and counsel fees incurred in connection therewith), joint or
several, which may be based upon either the 1933 Act, or the 1934 Act, or any
other statute or at common law, on the ground or alleged ground that any
Registration Statement (or any amendment or supplement thereto) pursuant to
which Exchange Securities or Registrable Securities were registered under the
1933 Act or any Prospectus included therein (or any amendment or supplement
thereto) included or allegedly included an untrue statement of material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
written information furnished to the Company by any such Section 4 Person
specifically for use in the preparation thereof; PROVIDED that in no case is
the Company to be liable with respect to any claims made against any Section
4 Person unless such Section 4 Person shall have notified the Company in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Section 4 Person, but failure to notify the Company of any such
claim shall not relieve it from any liability which it may have to such
Section 4 Person otherwise than on account of the indemnity agreement
contained in this paragraph; and PROVIDED, FURTHER, that the foregoing
indemnity with respect to any Prospectus, including any preliminary
prospectus or preliminary prospectus supplement, shall not inure to the
benefit of any Section 4 Person if a copy of the Prospectus (as amended or
supplemented) at the time of sale had not been sent or given by or on behalf
of such Section 4 Person to the Person asserting any such losses, claims,
damages or liabilities concurrently with or prior to delivery of the written
confirmation of the sale of Exchange Securities or Registrable Securities, as
the case may be, to such Person and the untrue statement or omission of a
material fact contained in any such Prospectus was corrected in the
Prospectus (as amended or supplemented).
The Company will be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense of any
suit brought to enforce any such liability, but, if the Company elects to
assume the defense, such defense shall be conducted by counsel chosen by it.
In the event that the Company elects to assume the defense of any such suit
and retains such counsel, each Section 4 Person may retain additional counsel
but shall bear the fees and expenses of such counsel unless (i) the Company
shall have specifically authorized the retaining of such counsel or (ii) the
parties to such suit have been advised by such counsel that one or more legal
defenses may be available to it or them which may not be available to the
Company, in which case the Company shall not be entitled to assume the
defense of such suit on behalf of such Section 4 Person, notwithstanding
their obligation to bear the reasonable fees and expenses of such counsel, it
being understood, however, that the Company shall not, in connection with any
18
one such suit or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all such
Section 4 Persons, which firm shall be designated in writing by BofA. The
Company shall not be liable to indemnify any Person for any settlement of any
such claim effected without the Company's consent. This indemnity agreement
will be in addition to any liability, which the Company might otherwise have.
(B) Each Section 4 Person agrees to indemnify and hold
harmless the Company, each of the Company's directors, each of the Company's
officers who have signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the 1933 Act or the 1934 Act,
against any losses, claims, damages, liabilities or expenses (including the
reasonable cost of investigating and defending against any claims therefor
and counsel fees incurred in connection therewith), joint or several, which
may be based upon the 1933 Act, or any other statute or at common law, on the
ground or alleged ground that any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act or any Prospectus included
therein (or any amendment or supplement thereto) included or allegedly
included an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but only insofar as any such statement or
omission was made in reliance upon, and in conformity with, written
information furnished to the Company by such Section 4 Person specifically
for use in the preparation thereof; PROVIDED that in no case is such Section
4 Person to be liable with respect to any claims made against the Company or
any such director, officer or controlling person unless the Company or any
such director, officer or controlling person shall have notified such Section
4 Person in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon the Company or any such director, officer or controlling person,
but failure to notify such Section 4 Person of any such claim shall not
relieve it from any liability which it may have to the Company or any such
director, officer or controlling person otherwise than on account of the
indemnity agreement contained in this paragraph.
Such Section 4 Person will be entitled to participate at
its own expense in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but, if such Section 4 Person
elects to assume the defense, such defense shall be conducted by counsel
chosen by it. In the event that such Section 4 Person elects to assume the
defense of any such suit and retain such counsel, the Company or such
director, officer or controlling person, defendant or defendants in the suit,
may retain additional counsel but shall bear the fees and expenses of such
counsel unless (i) such Section 4 Person shall have specifically authorized
the retaining of such counsel or (ii) the parties to such suit include the
Company or any such director, officer or controlling person and such Section
4 Person and the Company or such director, officer, trustee or controlling
person have been advised by such counsel that one or more legal defenses may
be available to it or them which may not be available to such Section 4
Person, in which case such Section 4 Person shall not be entitled to assume
the defense of such suit on behalf of the Company or such director, officer
or controlling person, notwithstanding its obligation to bear the reasonable
fees and expenses of such counsel, it being understood, however, that such
Section 4 Person shall not, in connection with any one such suit or
19
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all of the
Company and any such director, officer or controlling person, which firm
shall be designated in writing by the Company. Such Section 4 Person shall
not be liable to indemnify any person for any settlement of any such claim
effected without such Section 4 Person's consent. This indemnity agreement
will be in addition to any liability which such Section 4 Person might
otherwise have.
(C) If recovery is not available under Section 4(A) or 4(B)
hereof, for any reason other than as specified therein, the Persons entitled
to indemnification by the terms thereof shall be entitled to contribution for
liabilities and expenses, except to the extent that contribution is not
permitted under Section 1l(f) of the 1933 Act. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered (i) the benefits received by the Company, on the one hand, from
the offering of the Securities and such Section 4 Person, on the other hand,
from the sale of its Securities, Exchange Securities or Registrable
Securities, as the case may be, (ii) the parties' relative knowledge and
access to information concerning the matter with respect to which the claim
was asserted, (iii) the opportunity to correct and prevent any statement or
omission and (iv) any other equitable considerations appropriate under the
circumstances. The Company and the Section 4 Persons agree that it would not
be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Section 4 Persons were treated as one
entity for such purpose). No Section 4 Person shall be obligated to make such
contribution hereunder which in the aggregate exceeds the total public
offering price of its Exchange Securities and/or Registrable Securities
registered under the Registration Statement, less the aggregate amount of any
damages which such Section 4 Person has otherwise been required to pay in
respect of the same claim or any substantially similar claim. Any Section 4
Person's obligations to contribute under this Section 4 are several in
proportion to the aggregate principal amount of such Section 4 Person's
Registrable or Exchange Securities, as the case may be, that were registered
pursuant to such Registration Statement, and not joint.
5. MISCELLANEOUS.
5.1 RULE 144 AND RULE 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act,
the Company covenants that it will file the reports required to be filed by
it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the
rules and regulations adopted by the SEC thereunder. If the Company ceases to
be so required to file such reports, the Company covenants that it will upon
the request of any Holder of Registrable Securities (A) make publicly
available such information as is necessary to permit sales pursuant to Rule
144 under the 1933 Act, (B) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the
1933 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 1933 Act within the limitation of the exemptions provided by (i)
Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
(ii) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time or (iii) any similar rules or
20
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.
5.2 NO INCONSISTENT AGREEMENTS. The Company has not entered
into and the Company will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not 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.
5.3 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 Company has obtained the
written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure.
5.4 NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (a) 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 5.4, which address initially is the address set
forth in the Purchase Agreement with respect to the Initial Purchasers; and
(b) if to the Company, initially at the Company's address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
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
under the Indenture, at the address specified in such Indenture.
5.5 SUCCESSOR AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for
an express assignment, subsequent Holders; PROVIDED 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,
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if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 THIRD PARTY BENEFICIARIES. The Initial Purchasers (even
if the Initial Purchasers are not Holders of Registrable Securities) shall be
third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third
party beneficiary to the agreements made hereunder between the Company, on
the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.
5.7 SPECIFIC PERFORMANCE. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Sections
2.1 through 2.4 hereof may result in material irreparable injury to the
Initial Purchasers or 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, the Initial Purchasers
or any Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Sections 2.1 through 2.4 hereof.
5.8 RESTRICTION ON RESALES. Until the expiration of two
years after the original issuance of the Securities, the Company will not,
and will cause its "affiliates" (as such term is defined in Rule 144(a)(1)
under the 0000 Xxx) not to, resell any Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 0000 Xxx)
that have been reacquired by any of them and shall immediately upon any
purchase of any such Securities submit such Securities to the Trustee for
cancellation.
5.9 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.
5.10 HEADINGS. The headings in this Agreement are for the
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
RELIANT ENERGY RESOURCES CORP.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: Treasurer
CONFIRMED AND ACCEPTED
AS OF THE DATE FIRST ABOVE WRITTEN:
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
BY: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Managing Director
On behalf of each of the Initial Purchasers
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EXHIBIT A
FORM OF OPINION OF COUNSEL
The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
The Registration Statement has become effective under the 1933 Act,
and, to the best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted and are pending or are
threatened by the SEC under the 1933 Act.
The Exchange Offer Registration Statement and the Prospectus (except
for (A) the operating statistics, financial statements, pro forma financial
statements and financial statement schedules contained or incorporated by
reference therein (including the auditors' reports on the financial
statements and the notes to the financial statements), (B) the other
financial and statistical information contained or incorporated by reference
therein and (C) the exhibits thereto, as to which we have not been asked to
comment) comply as to form in all material respects with the applicable
requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
We have participated in conferences with certain officers and other
representatives of the Company, representatives of the independent public
accountants of the Company, representatives of the [Initial Purchasers]
[Holders] and counsel for the [Initial Purchasers] [Holders], at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed. Although we have not undertaken to determine independently,
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in or incorporated by reference in the
Registration Statement or the Prospectus, we advise you that, on the basis of
the foregoing (relying as to materiality to a large extent upon statements
and other representations of officers and other representatives of the
Company), no facts have come to our attention that lead us to believe that
the Registration Statement and any amendment made thereto prior to the date
hereof (except for (A) the operating statistics, financial statements, pro
forma financial statements and financial statement schedules contained or
incorporated by reference therein (including the auditors' reports on the
financial statements and the notes to the financial statements, except to the
extent that such notes describe legal or governmental proceedings to which
the Company is a party and are incorporated by reference into one or more
items of a report that is incorporated by reference in the Registration
Statement or the Prospectus, other than an item that requires that financial
statements be provided), (B) the other financial and statistical information
contained or incorporated by reference therein and (C) the exhibits thereto,
as to which we have not been asked to comment), as of the time the
Registration Statement became effective or such amendment was filed,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, and any amendment
or supplement thereto made prior to the date hereof (except for (A) the
operating statistics, financial statements,
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pro forma financial statements and financial statement schedules contained or
incorporated by reference therein (including the auditors' reports on the
financial statements and the notes to the financial statements, except to the
extent that such notes describe legal or governmental proceedings to which
the Company is a party and are incorporated by reference into one or more
items of a report that is incorporated by reference in the Registration
Statement or the Prospectus, other than an item that requires that financial
statements be provided), (B) the other financial and statistical information
contained or incorporated by reference therein and (C) the exhibits thereto,
as to which we have not been asked to comment), as of the date of the
Prospectus or such amendment or supplement contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
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