EXHIBIT 4.60
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of July 30, 1999
by and among
Central Vermont Public Service Corporation
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
TD Securities (USA) Inc.
This Registration Rights Agreement (this "Agreement") is made
and entered into as of July 30, 1999, by and among Central Vermont
Public Service Corporation, a Vermont corporation (the "Company"),
and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and TD (USA)
Securities Inc. (each an "Initial Purchaser" and, collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the
Company's 8 1/8% Transfer Restricted Second Mortgage Bonds due 2004
(the "Initial Bonds") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement, dated
July 21, 1999 (the "Purchase Agreement"), by and among the Company
and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Bonds, the Company has agreed to
provide the registration rights set forth in this Agreement. Each of
the execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 3 of the
Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them the Second Mortgage
Indenture, dated as of July 15, 1999, as supplemented by the First
Supplemental Indenture thereto, dated as of July 15, 1999), between
the Company and The Bank of New York, as Trustee, relating to the
Initial Bonds and the Exchange Bonds (the "Second Mortgage
Indenture", as supplemented by the First Supplemental Indenture, the
"Second Mortgage").
The parties hereby agree as follows:
SECTION 1 DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Certificated Securities: Definitive Bonds, as defined in the Second
Mortgage.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Bonds to be issued in the Exchange
Offer, (b) the maintenance of such Exchange Offer Registration
Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to the
Registrar under the Second Mortgage of Exchange Bonds in the same
aggregate principal amount as the aggregate principal amount of
Initial Bonds tendered by Holders thereof pursuant to the Exchange
Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Bonds: The Company's 8 1/8% Second Mortgage Bonds due 2004
to be issued pursuant to the Second Mortgage: (i) in the Exchange
Offer or (ii) as contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Company of a
principal amount of Exchange Bonds (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to the
outstanding principal amount of Initial Bonds that are tendered by
such Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Initial Bonds to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Bonds pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement
and (ii) including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Second Mortgage Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Second Mortgage.
Transfer Restricted Securities: Each (A) Initial Bond, until the
earliest to occur of (i) the date on which such Initial Bond is
exchanged in the Exchange Offer for an Exchange Bond which is
entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (ii)
the date on which such Initial Bond has been disposed of in
accordance with a Shelf Registration Statement, or (iii) the date on
which such Initial Bond is sold pursuant to Rule 144 under the Act or
may be sold without restrictions pursuant to Rule 144(k) under the
Act and each (B) Exchange Bond held by a Broker Dealer until the date
on which such Exchange Bonds is disposed of by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange
Offer Registration Statement (including the delivery of the
Prospectus contained therein).
SECTION 2 HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer
Restricted Securities.
SECTION 3 REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law or applicable interpretations of the
Commission staff (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission
as soon as practicable after the Closing Date, but in no event later
than 90 days after the Closing Date (such 90th day being the "Filing
Deadline"), (ii) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 210 days after the
Closing Date (such 210th day being the "Effectiveness Deadline"),
(iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C)
cause all necessary filings, if any, in connection with the
registration and qualification of the Exchange Bonds to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness
of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Exchange Bonds to
be offered in exchange for the Initial Bonds that are Transfer
Restricted Securities and (ii) resales of Exchange Bonds by Broker
Dealers that tendered into the Exchange Offer Initial Bonds that such
Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Initial
Bonds acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company shall use its reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other
than the Exchange Bonds shall be included in the Exchange Offer
Registration Statement. The Company shall use its reasonable best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 business days
thereafter (such 45th day being the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other
trading activities (other than Transfer Restricted Securities
acquired directly from the Company or any Affiliate of the Company),
may exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such "Plan of Distribution" section shall also
contain all other information with respect to such sales by such
Broker-Dealers that the Commission may require in order to permit
such sales pursuant thereto, but such "Plan of Distribution" shall
not name any such Broker-Dealer or disclose the amount of Transfer
Restricted Securities held by any such Broker-Dealer, except to the
extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement. See the
Shearman & Sterling no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its
initial sale of any Exchange Bonds received by such Broker-Dealer in
the Exchange Offer, the Company shall permit the use of the
Prospectus contained in the Exchange Offer Registration Statement by
such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the prospectus contained in
the Exchange Offer Registration Statement is available for sales of
Exchange Bonds by Broker-Dealers, the Company agrees to use its
reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Section 6(a) and (c)
hereof and in conformity with the requirements of this Agreement, the
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the
Consummation Deadline or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company shall provide
sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one
Business Day after such request, at any time during such period.
SECTION 4 SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company
has complied with the procedures set forth in Section 6(a)(i) below)
or (ii) if any Holder of Transfer Restricted Securities shall notify
the Company within 20 Business Days following the Consummation
Deadline that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Bonds acquired by it in the Exchange
Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Initial Bonds acquired
directly from the Company or any of its Affiliates, then the Company
shall:
(x) use its reasonable best efforts to file, on or prior to
45 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot be
filed as a result of clause (a)(i) above and (ii) the date on which
the Company receives the notice specified in clause (a)(ii) above,
(such earlier date, the "Filing Deadline"), a shelf registration
statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "Shelf
Registration Statement"), relating to all Transfer Restricted
Securities, and
(y) shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective on or prior to 90
days after the Filing Deadline for the Shelf Registration Statement
(such 90th day, the "Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the
Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer is not permitted under
applicable federal law (i.e., clause (a)(i) above), then the filing
of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above; provided that, in such
event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by
the Holders thereof entitled to the benefit of this Section 4(a), the
Company shall use its reasonable best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously
effective, supplemented and amended as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section
6(c)(i)) following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act and such other information as the Company may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to
liquidated damages pursuant to Section 5 hereof unless and until such
Holder shall have provided all such information. Each selling Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
SECTION 5 LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the applicable Filing
Deadline, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the applicable
Effectiveness Deadline, (iii) the Exchange Offer has not been
Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within
2 Business Days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared
effective within 5 Business Days of filing such post-effective
amendment to such Registration Statement (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the
Company hereby agrees to pay liquidated damages to each Holder of
Transfer Restricted Securities affected thereby, with respect to the
first 90-day period immediately following the occurrence of the first
Registration Default, at a rate per annum equal to 0.25% of the
principal amount of the Transfer Restricted Securities. The rate of
the liquidated damages will increase by an additional 0.25% per annum
with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum rate for all Registration
Defaults of 0.75% per annum of the principal amount of Transfer
Restricted Securities; provided that the Company shall in no event be
required to pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary
set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement),
in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon
Consummation of the Exchange Offer, in the case of (iii) above, or
(4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the
Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement) to again be declared effective or made
usable in the case of (iv) above, the liquidated damages payable with
respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest
in the Second Mortgage, on each Interest Payment Date, as more fully
set forth in the Second Mortgage and the Bonds. Notwithstanding the
fact that any securities for which liquidated damages are due cease
to be Transfer Restricted Securities, all obligations of the Company
to pay liquidated damages with respect to such securities shall
survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
Notwithstanding the foregoing, if the Company has complied with
its obligations under Section 6 of this Agreement, no Holder of
Initial Bonds shall be entitled to receive any liquidated damages
with respect to such Initial Bonds if a Holder of such Initial Bonds
was, at any time while the Exchange Offer was pending, eligible to
exchange, and did not validly tender, such Initial Bonds for Exchange
Bonds in the Exchange Offer.
SECTION 6 REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall (x) comply with all applicable
provisions of Section 6(c) below, (y) use its reasonable best efforts
to effect such exchange and to permit the resale of Exchange Bonds by
Broker-Dealers that tendered in the Exchange Offer Initial Bonds that
such Broker-Dealer acquired for its own account as a result of its
market making activities or other trading activities (other than
Initial Bonds acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the
following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as
the Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company hereby
agrees to seek a no-action letter or other favorable decision from
the Commission allowing the Company to Consummate an Exchange Offer
for such Transfer Restricted Securities. The Company hereby agrees
to use its reasonable best efforts to pursue the issuance of such a
decision to the Commission staff level. In connection with the
foregoing, the Company hereby agrees to take all such other
reasonable actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with
the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Bonds to be
issued in the Exchange Offer and (C) it is acquiring the Exchange
Bonds in its ordinary course of business. As a condition to its
participation in the Exchange Offer each Holder using the Exchange
Offer to participate in a distribution of the Exchange Bonds shall
acknowledge and agree that, if the resales are of Exchange Bonds
obtained by such Holder in exchange for Exchange Bonds acquired
directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act
in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental
letter to the Commission (A) stating that the Company is registering
the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that the
Company has not entered into any arrangement or understanding with
any Person to distribute the Exchange Bonds to be received in the
Exchange Offer and that, to the best of the Company's information and
belief, each Holder participating in the Exchange Offer is acquiring
the Exchange Bonds in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Bonds received in the Exchange Offer and
(C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall (i) comply with all the
provisions of Section 6(c) below and use its reasonable best efforts
to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company will prepare and file with
the Commission a Registration Statement relating to the registration
on any appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof within the
time periods and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the
Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of material fact
or omit to state any material fact necessary to make the statements
therein not misleading or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use its best efforts to cause such
amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as the case
may be; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or
that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, but without limiting the Company's
obligations under Section 5 hereof, the Company may postpone taking
action with respect to a supplement or amendment with respect to a
Shelf Registration Statement or Prospectus contained therein for a
reasonable period of time, but in no event shall such period exceed
30 days, after the occurrence of any fact or event contemplated by
Section 6(c)(iii)(D) if, in the good faith opinion of the Board of
Directors of the Company, as evidenced by a resolution of the Board
of Directors, effecting the registration would adversely affect a
material impending financing, acquisition or disposition of assets or
stock, merger or other comparable transaction or would require the
Company to make public disclosure of information which would not
otherwise then be required and which would have a material adverse
effect upon the Company or its shareholders; provided that the
Company shall not delay such action pursuant to the foregoing more
than one in any 12-month period.
(v) furnish to each selling Holder named in any Registration
Statement or Prospectus in connection with such exchange or sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will be
subject to the review and comment of such selling Holders in
connection with such sale, if any, for a period of at least five
Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such selling Holders shall
reasonably object within five Business Days after the receipt
thereof. A selling Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Act;
provided, however, that a selling Holder shall not be deemed to have
reasonably objected to such filing if the material misstatement or
omission or failure to comply with applicable requirements of the Act
results from the fact that such material misstatement or omission is
based upon information relating to any of the selling Holders
furnished to the Company by any of the selling Holders.
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each selling Holder in
connection with such exchange or sale, if any, make the Company's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders may
reasonably request;
(vii) make available, at reasonable times, for inspection by
each selling Holder and any attorney or accountant retained by such
selling Holders, all financial and other records and pertinent
corporate documents of the Company and cause the Company's officers,
directors and employees to supply all information reasonably
requested by any such selling Holder, attorney or accountant in
connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness; provided 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
such 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 Person 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, after due inquiry, by such Person to be
bound by a confidentiality agreement, provided, further, that the
foregoing investigation shall be coordinated on behalf of such
Persons by one representative designated by and on behalf of such
Persons and any such confidential information shall be available from
such representative to such Persons so long as any Person agrees to
be bound by such confidentiality agreement;
(viii) if requested by any selling Holders in connection with
such exchange or sale, promptly include in any Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such selling Holders may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) furnish to each selling Holder in connection with such
exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference) provided that the provisos under Section
6(c)(vii) shall not apply to such documents to the extent that the
Company has requested confidential treatment from the Commission with
respect to any of such documents;
(x) deliver to each selling Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; the Company hereby consents to the use (in accordance with
law) of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any applicable Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder of
Initial Bonds in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, the Company
shall:
(A) upon request of any selling Holder, furnish (or in the case
of paragraphs (2) and (3), use its reasonable best efforts to cause
to be furnished) to each selling Holder, upon the effectiveness of
the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company, confirming,
as of the date thereof, the matters set forth in Sections 9(a) and
9(b) of the Purchase Agreement and such other similar matters as such
selling Holders may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement of counsel for the Company covering matters
similar to those set forth in paragraph (e) of Section 9 of the
Purchase Agreement and such other matters as such selling Holder may
reasonably request, and in any event including a statement to the
effect that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants for the Company and has considered
the matters required to be stated therein and the statements
contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to the extent such counsel deems
appropriate upon the statements of officers and other representatives
of the Company and without independent check or verification), no
facts came to such counsel's attention that caused such counsel to
believe that the shelf Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date
contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial and
statistical data included in the Shelf Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter as of the date of effectiveness
of the Shelf Registration Statement, from the Company's independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 9(h) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the Company
pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the state securities or Blue Sky laws of
such jurisdictions as the selling Holders may reasonably request in
writing and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service
of process in suits, other than as to matters and transactions
relating to the Registration Statement or to taxation, in any
jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the
selling Holders may request at least 2 Business Days prior to such
sale of Transfer Restricted Securities;
(xiv) use its reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained
in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide
the Trustee under the Second Mortgage with printed certificates for
the Transfer Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvi) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Second Mortgage to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders to effect such changes to
the Second Mortgage as may be required for such Second Mortgage to be
so qualified in accordance with the terms of the TIA; and execute and
use its reasonable best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to
enable such Second Mortgage to be so qualified in a timely manner;
and
(xviii) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice
referred to in Section 6(c)(iii)(C) or any notice from the Company of
the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such
Holder will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such
Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the "Recommencement Date"). Each Holder
receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with
more recently dated Prospectuses or (ii) deliver to the Company (at
the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3
or 4 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date
of delivery of the Suspension Notice to the date of delivery of the
Recommencement Date.
SECTION 7 REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees
and expenses; (ii) all reasonable fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates, if
applicable, for the Exchange Bonds to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all reasonable fees and disbursements of counsel for
the Company and the Holders of Transfer Restricted Securities
(subject to paragraph (b) of this Section 7); (v) all application and
filing fees in connection with listing the Exchange Bonds on a
national securities exchange or automated quotation system pursuant
to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including
the expenses of any special audit and comfort letters required by or
incident to such performance). Notwithstanding the foregoing or
anything in this Agreement to the contrary, each Holder of Initial
Bonds being registered shall pay all commissions, placement agent
fees and underwriting discounts and commissions with respect to any
Initial Bonds sold by it.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Initial Bonds in the
Exchange Offer and/or selling or reselling Initial Bonds or Exchange
Bonds pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements
of not more than one counsel, who shall be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.
SECTION 8 INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each
Holder, its directors, officers and each Person, if any, who controls
such Holder (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act), from and against any and all losses, claims,
damages, liabilities, judgments (including without limitation, any
reasonable legal or other expenses incurred in connection with
investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective
purchaser of Exchange Bonds or registered Initial Bonds, or caused by
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement
or omission or alleged untrue statement or omission that is based
upon information relating to any of the Holders furnished in writing
to the Company by any of the Holders; and provided, further, that
with respect to any such untrue statement in or omission from, or
alleged untrue statement of a material fact contained in or alleged
omission from any such Registration Statement or preliminary
prospectus (or amendment or supplement thereto), the indemnity
agreement contained in this Section 8(a) shall not inure to the
benefit of any such Holder to the extent that any such loss, claim,
damage, liability or judgment results from the fact that both (A) a
copy of the Prospectus was not sent or given to such person or prior
to the written confirmation of the sale of Bonds to such person and
(B) the untrue statement in or omission or alleged untrue statement
or alleged omission from the Registration Statement or preliminary
prospectus was corrected in the Prospectus (unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance
by the Company with Section 6(c)(x) hereof).
(b) Each Holder of Transfer Restricted agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its
directors and officers, and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Company, to the same extent as the foregoing indemnity from
the Company set forth in section (a) above, but only with reference
to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or
any Person who controls such Holder be liable or responsible for any
amount in excess of the amount by which the total amount received by
such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b) (the "indemnified party"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying person") in writing and the indemnifying party
shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the
payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 8(a) and 8(b), a
Holder shall not be required to assume the defense of such action
pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of the
Holder). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such
counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified
party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which
case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any
such case, the indemnifying party shall not, in connection with any
one action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be
rimbursed as they are incurred. Such firm shall be designated in
writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case
of parties indemnified pursuant to Section 8(b). The indemnifying
party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and
judgments by reason of any settlement of any action (i) effected with
the indemnifying party's written consent or (ii) effected without the
indemnifying party's written consent if the settlement is entered
into more than thirty Business Days after the indemnifying party
shall have received a written request from the indemnified party for
reimbursement for the reasonable fees and expenses of counsel (in any
case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of
such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf
of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company, on
the one hand, and of the Holder, on the other hand, in connection
with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Holder, on the other hand, shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above
shall be deemed to include, subject to the limitations set forth in
Section 8(a), any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any
action or claim.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers
or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by
which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages
which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION 9 RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in
which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such
Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13
or 15 (d) of the Exchange Act, to make all filings required thereby
in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10 MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Sections
3 and 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 will 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 3 and 4 hereof. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company has not previously entered into
any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless
(i) in the case of Section 5 hereof and this Section 10(c)(i), the
Company has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities and (ii) in the case of
all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities (excluding Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose
Transfer Restricted Securities are being tendered pursuant to the
Exchange Offer, and that does not affect directly or indirectly the
rights of other Holders whose Transfer Restricted Securities are not
being tendered pursuant to such Exchange Offer, may be given by the
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries 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 they may deem such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Second Mortgage, with a copy to the
Registrar under the Second Mortgage; and
(ii) if to the Company:
Central Vermont Public Service Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address specified in the Second Mortgage.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders; provided, that nothing herein
shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the
terms hereof or of the Purchase Agreement or the Second Mortgage. If
any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and
provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase
Agreement, and such Person shall be entitled to receive the benefits
hereof.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with
respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
TD SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Director
