Exhibit 1.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
------------------------------------------
XXXXXX ENERGY LLC
$402,000,000 8.159% Senior Secured Bonds
due July 5, 2026
October 12, 2001
Credit Suisse First Boston Corporation
ABN AMRO Incorporated
Westdeutsche Landesbank Girozentrale (Dusseldorf)
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the issue and sale of $402,000,000 principal amount
of 8.159% Senior Secured Bonds due July 5, 2026 (the "Initial Securities")
------------------
issued by Xxxxxx Energy LLC, a Delaware limited liability company (the
"Issuer"), pursuant to the terms of the Indenture (as defined below) and as an
------
inducement to Credit Suisse First Boston Corporation, ABN AMRO Incorporated and
Westdeutsche Landesbank Girozentrale (Dusseldorf) (collectively, the "Initial
-------
Purchasers") to enter into the Purchase Agreement, dated as of October 12, 2001
----------
(the "Purchase Agreement"), among the Issuer and the Initial Purchasers, the
------------------
Issuer hereby agrees to provide the registration rights set forth in this
Registration Rights Agreement (this "Agreement") for the benefit of the holders
---------
of the Initial Securities. The execution of this Agreement is a condition to
the purchase of the Initial Securities under the Purchase Agreement.
SECTION 1. Definitions. Capitalized terms used herein without
-----------
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall equally apply to both the
singular and plural forms of the terms defined. As used in this Agreement, the
following terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
------
Section 5 of this Agreement.
---------
"Affiliate", with respect to any Person, shall mean any other Person
---------
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such first Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or by contract or otherwise. For
purposes of Section 2, an "Affiliate" of the Issuer shall mean and include, in
---------
addition, any Person deemed an affiliate thereof under the Securities Act or the
Exchange Act in connection with the Exchange Offer.
"Closing Date" shall mean the date of the initial issuance and sale of
------------
the Initial Securities.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Cure Date" shall have the meaning set forth in Section 4(a) of this
--------- ------------
Agreement.
"Effective Date" shall mean the date which is 270 days after the
--------------
Closing Date.
"Effective Period" shall have the meaning set forth in Section 3(a) of
---------------- ------------
this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" shall have the meaning set forth in Section 2(a) of
-------------- ------------
this Agreement.
"Exchange Offer Registration Statement" shall have the meaning set
-------------------------------------
forth in Section 2(a) of this Agreement.
------------
"Exchange Period" shall have the meaning set forth in Section 2(a) of
--------------- ------------
this Agreement.
2
"Exchange Securities" shall have the meaning set forth in Section 2(a)
------------------- ------------
of this Agreement.
A "holder" of Registrable Securities shall mean the registered holder
------
of such securities or any beneficial owner thereof.
"Holder Indemnified Party" shall have the meaning set forth in Section
------------------------ -------
8(a) of this Agreement.
----
"Holder Information" shall have the meaning set forth in Section 8(a)
------------------ ------------
of this Agreement.
"Illiquidity Event" with respect to the Registrable Securities shall
-----------------
mean any of the following events:
(a) as of the Effective Date, both (i) an Exchange Offer Registration
Statement (which, if applicable pursuant to Section 2(a), covers resales of
------------
such Exchange Securities) has not become effective and (ii) the Registrable
Securities are not the subject of an Initial Shelf Registration Statement
which has become effective; or
(b) the Exchange Securities offered in exchange for the Registrable
Securities are the subject of an Exchange Offer Registration Statement
which was effective (and which, if applicable pursuant to Section 2(a),
------------
covered resales of such Exchange Securities) but which ceased to be
effective for any reason prior to the end of the Exchange Period; or
(c) the Registrable Securities are the subject of an Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement which was
effective but which has ceased to be effective for any reason prior to the
end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on the date
subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in clause (a)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
------------
Securities exchanged for such Registrable Securities) shall become
effective and an Exchange Offer for such Registrable Securities shall have
commenced or (ii) an Initial Shelf
3
Registration Statement covering such Registrable Securities shall become
effective; or
(ii) in the case of an Illiquidity Event described in clause (b)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
------------
Securities offered in exchange for such Initial Securities) shall become
effective and an Exchange Offer for such Registrable Securities shall have
commenced pursuant to an Exchange Offer Registration Statement or (ii) an
Initial Shelf Registration Statement covering such Registrable Securities
shall become effective; or
(iii) in the case of an Illiquidity Event described in clause (c)
above, a Subsequent Shelf Registration Statement covering such Registrable
Securities shall become effective.
"Indenture" shall mean the Trust Indenture dated as of October 23,
---------
2001 and as further amended or supplemented from time to time in accordance with
the terms thereof, between the Issuer and the Trustee, and pursuant to which the
Initial Securities are to be issued.
"Initial Purchasers" shall have the meaning set forth in the first
------------------
paragraph of this Agreement.
"Initial Securities" shall have the meaning set forth in the first
------------------
paragraph of this Agreement.
"Initial Shelf Registration Statement" shall have the meaning set
------------------------------------
forth in Section 3(a) of this Agreement.
------------
"Inspectors" shall have the meaning set forth in Section 5(m) of this
---------- ------------
Agreement.
"Issuer" shall have the meaning set forth in the first paragraph of
------
this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Prospectus" shall mean the prospectus included in any Registration
----------
Statement (including, without limitation, a prospectus that discloses
information
4
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, and all other amendments
and supplements to the Prospectus, including post-effective amendments and all
material incorporated by reference into such prospectus.
"Purchase Agreement" shall have the meaning set forth in the first
------------------
paragraph of this Agreement.
"Records" shall have the meaning set forth in Section 5(m) of this
------- ------------
Agreement.
"Registrable Securities" shall mean the Initial Securities upon
----------------------
original issuance thereof and at all times subsequent thereto until, in the case
of any such Initial Security, (i) a Registration Statement covering such Initial
Security, or the Exchange Security to be exchanged for such Initial Security
(and, in the case of any Resale Security, any resale thereof), has been declared
effective and such Initial Security has been disposed of or exchanged (or, in
any case where such Registration Statement covers the resale of Resale
Securities, such Initial Security has been exchanged and the Resale Security
received therefor has been resold), as the case may be, in accordance with such
effective Registration Statement, (ii) such Initial Security is sold in
compliance with Rule 144 or would be permitted to be sold pursuant to Rule
144(k), (iii) such Initial Security shall have been otherwise transferred and a
new certificate therefor not bearing a legend restricting further transfer shall
have been delivered by or on behalf of the Issuer and such Initial Security
shall be tradeable by each holder thereof without restriction under the
Securities Act or the Exchange Act and without material restriction under the
applicable blue sky or state securities laws or (iv) such Initial Security
ceases to be outstanding.
"Registration Statement" shall mean any registration statement
----------------------
(including any Shelf Registration Statement) of the Issuer that covers any of
the Registrable Securities or the Exchange Securities, as the case may be,
pursuant to the provisions of this Agreement, including the Prospectus which is
part of such Registration Statement, amendments (including post-effective
amendments) and supplements to such Registration Statement and all exhibits and
appendices to any of the foregoing. For purposes of the foregoing, unless the
context requires otherwise, a Registration Statement for an Exchange Offer shall
not be deemed to cover Registrable Securities held by a Restricted Person unless
such Registration Statement covers the resale of Resale Securities to be
received by such Restricted Person pursuant to such
5
Exchange Offer and any such Initial Securities shall continue to be Registrable
Securities.
"Resale Initial Purchaser" shall have the meaning set forth in Section
------------------------ -------
8(a) of this Agreement.
----
"Resale Securities" shall mean any Exchange Security received by a
-----------------
Restricted Person pursuant to an Exchange Offer, and at all times subsequent
thereto, until, subject to the time periods set forth herein, such Exchange
Security has been resold by such Restricted Person.
"Restricted Person" shall mean (a) any Affiliate of the Issuer, (b)
-----------------
any Initial Purchaser or (c) any Affiliate of any Initial Purchaser (other than
Affiliates of such Initial Purchaser that (i) are acquiring Exchange Securities
in the ordinary course of business and do not have an arrangement with any
Person to distribute Exchange Securities and (ii) may trade such Exchange
Securities without restriction under the Securities Act).
"Rule 144" shall mean Rule 144 under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such
---------
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
--------------
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in Section 2(b) of
------------ ------------
this Agreement.
"Shelf Registration Statement" shall have the meaning set forth in
----------------------------
Section 3(b) of this Agreement.
------------
6
"Special Counsel" shall mean Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
---------------
special counsel to the Initial Purchasers, or any other firm acceptable to the
Issuer, acting as special counsel to the holders of Registrable Securities or
Exchange Securities.
"Subsequent Shelf Registration Statement" shall have the meaning set
---------------------------------------
forth in Section 3(b) of this Agreement.
------------
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and the
---
rules and regulations of the Commission promulgated thereunder.
"Trustee" shall mean Bank One Trust Company, National Association, its
-------
successors and any successor trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
------------------------- ---------------------
registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
SECTION 2. Exchange Offer.
--------------
(a) Unless the Issuer determines in good faith that the Exchange
Offer shall not be permissible under applicable law or Commission policy, the
Issuer shall prepare and cause to be filed with the Commission as soon as
reasonably practicable after the Closing Date, subject to Sections 2(b) and 2(c)
------------- ----
of this Agreement, a Registration Statement (an "Exchange Offer Registration
---------------------------
Statement") for an offer to exchange (an "Exchange Offer") the Registrable
--------- --------------
Securities (subject to Section 2(c)) for a like aggregate principal amount of
------------
debt securities of the Issuer that are in all material respects substantially
identical to the Initial Securities (the "Exchange Securities") (and which are
-------------------
entitled to the benefits of the Indenture, which shall be qualified under the
TIA in connection with such registration, or a trust indenture which is
substantially identical in all material respects to the Indenture), other than
such changes to the Indenture or any such substantially identical indenture as
the Trustee and the Issuer may deem necessary in connection with the Trustee's
rights and duties or to comply with any requirements of the Commission to effect
or maintain the qualification thereof under the TIA. The Exchange Offer shall
be registered under the Securities Act on the appropriate form of Registration
Statement and shall comply with all applicable tender offer rules and
regulations under the Exchange Act and with all other applicable laws. Subject
to the terms and limitations of Section 2(c), such Exchange Offer Registration
------------
Statement may also cover any resales of Exchange Securities by any
7
Restricted Person, in the manner or manners designated by them which, in any
event, are reasonably acceptable to the Issuer.
The Issuer shall use its reasonable best efforts to (i) cause the
Exchange Offer Registration Statement to become effective under the Securities
Act on or prior to the Effective Date, (ii) keep the Exchange Offer open for a
period of not less than the shorter of (A) the period ending when the last
remaining Initial Security is tendered into the Exchange Offer and (B) 30 days
from the date notice is mailed to the holders of Initial Securities (provided
--------
that in no event shall such period be less than the period required under
applicable Federal and state securities laws), and (iii) maintain such Exchange
Offer Registration Statement continuously effective for a period (the "Exchange
--------
Period") of not less than the longer of (A) the period until the consummation of
------
the Exchange Offer and (B) 120 days after effectiveness of the Exchange Offer
Registration Statement, provided however, that in the event that all resales of
-------- -------
Exchange Securities (including, subject to the time periods set forth herein,
any Resale Securities and including, subject to the time periods set forth
herein, any resales by broker-dealers that receive Exchange Securities for their
own account pursuant to the Exchange Offer) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration Statement
need not remain continuously effective for the period set forth in clause (B)
above. Upon consummation of the Exchange Offer, the Issuer shall deliver to the
Trustee under the Indenture for cancellation all Initial Securities tendered by
the holders thereof pursuant to the Exchange Offer and not withdrawn prior to
the date of consummation of the Exchange Offer. Each Restricted Person shall
notify the Issuer promptly after reselling all Resale Securities held by such
Restricted Person which are covered by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the Exchange
Offer (other than any Restricted Person) shall be required as a condition to
participating in the Exchange Offer to represent that (i) it is not an Affiliate
of the Issuer, (ii) any Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and (iii) that at the time of
the consummation of the Exchange Offer it shall have no arrangement with any
person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Securities. Upon consummation of an Exchange Offer in
accordance with this Section 2 and compliance with the other provisions of this
---------
Section 2, the Issuer shall, subject to Sections 2(b) and 2(c), have no further
--------- ------------- ----
obligation to register Registrable Securities pursuant to Section 3 of this
---------
Agreement; provided that the other provisions of this Agreement shall continue
--------
to apply as set forth in such provisions.
8
(b) In the event that the Issuer reasonably determines in good faith
that (i) the Exchange Securities would not, upon receipt in the Exchange Offer
by any holder of Registrable Securities (other than any Restricted Person and
other than any holder who is not acquiring such Exchange Securities in the
ordinary course of business or who has an arrangement with any person to
participate in the distribution of such Exchange Securities), be tradeable by
each holder thereof without restriction under the Securities Act and the
Exchange Act and without restriction under applicable blue sky or state
securities laws, (ii) after conferring with counsel, the Commission is unlikely
to permit the Exchange Offer Registration Statement to become effective prior to
the Effective Date (except in the circumstances set forth in Section 2(c)) or
------------
(iii) the Exchange Offer may not be made in compliance with applicable laws,
then the Issuer shall promptly deliver notice thereof (the "Shelf Notice") to
------------
the holders of the Registrable Securities and the Trustee and shall thereafter
file an Initial Shelf Registration Statement pursuant to, and otherwise comply
with, the provisions of Section 3(a). Following the delivery of a Shelf Notice
------------
in accordance with this Section 2(b) and compliance with Section 3(a), the
------------ ------------
Issuer shall not have any further obligation under this Section 2.
---------
(c) In the event that the Issuer reasonably determines in good faith
that (i) the Exchange Securities would not, upon consummation of any resale
thereof by a Restricted Person to any Person other than another Restricted
Person, be tradeable by each holder thereof without restriction under the
Securities Act (other than applicable prospectus requirements) and the Exchange
Act and without restriction under applicable blue sky or state securities laws
or (ii) the Commission is unlikely to permit the Exchange Offer Registration
Statement to become effective prior to the Effective Date solely because such
Registration Statement covers resales of the Exchange Securities by Restricted
Persons, then the Issuer shall promptly deliver a Shelf Notice to the Restricted
Persons who are holders of Registrable Securities and to the Trustee, and the
Issuer shall thereafter file an Initial Shelf Registration Statement with
respect to any such Registrable Securities pursuant to, and otherwise comply
with, the provisions of Section 3(a); provided that such Initial Shelf
------------ --------
Registration Statement shall only cover resales of Registrable Securities by
Restricted Persons if a Shelf Notice is not then otherwise required to be
delivered pursuant to Section 2(b). Following the delivery of a Shelf Notice in
------------
accordance with this Section 2(c) and compliance with Section 3(a), the Issuer
------------ ------------
shall not have any further obligation under this Section 2 with respect to the
---------
filing of an offer to exchange the Registrable Securities held by the Restricted
Persons (including, without limitation, any obligation to provide that an
Exchange Offer Registration Statement filed pursuant to Section 2(a) cover
------------
resales of Exchange Securities by Restricted Persons); provided that the
--------
provisions of this
9
Section 2 shall otherwise remain in full force and effect with respect to
---------
Registrable Securities held by any person other than a Restricted Person.
SECTION 3. Shelf Registration; Registrable Securities. With respect
------------------------------------------
to the Registrable Securities, if a Shelf Notice is delivered in accordance with
Section 2(b) or 2(c) of this Agreement, then the Issuer shall comply with the
------------ ----
following provisions of this Section 3:
---------
(a) Initial Shelf Registration. The Issuer shall prepare and cause
--------------------------
to be filed with the Commission a Registration Statement for an offering to be
made on a continuous basis covering all of the Registrable Securities (or, if a
Shelf Notice is delivered solely pursuant to Section 2(c), all of the
------------
Registrable Securities held by any Restricted Persons) (the "Initial Shelf
-------------
Registration Statement"); provided, however, that no holder shall be entitled to
---------------------- -------- -------
have its Registrable Securities covered by such Initial Shelf Registration
Statement unless such holder agrees in writing, within 10 Business Days after
actual receipt of a request therefrom, to be bound by all the provisions of this
Agreement applicable to such holder. No holder shall be entitled to the
benefits of Section 4 of this Agreement unless and until such holder shall have
---------
provided all information reasonably requested by the Issuer (after conferring
with counsel), and such holder shall not be entitled to such benefits with
respect to any period during which such information was not provided. Each
holder to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make the information previously furnished to the Issuer by such holder not
materially misleading. The Initial Shelf Registration Statement shall be an
appropriate form permitting registration of such Registrable Securities for
resale by the holders thereof in the manner or manners reasonably designated by
them (but excluding any Underwritten Offerings). The Issuer shall use its
reasonable best efforts to (A) cause the Initial Shelf Registration Statement to
be declared effective under the Securities Act on or prior to the Effective Date
and (B) keep the Initial Shelf Registration Statement continuously effective
under the Securities Act for a period of two (2) years after the Closing Date
(subject to extension pursuant to the last paragraph of Section 5 and subject,
---------
with respect to Registrable Securities held by Restricted Persons, to the
limitations set forth in Section 2(c)) (such two (2) year period, as it may be
------------
extended or shortened, being the "Effective Period"), or such shorter period
----------------
ending when (1) all Registrable Securities covered by the Initial Shelf
Registration Statement have been sold or (2) a Subsequent Shelf Registration
Statement covering all of such Registrable Securities remaining unsold has been
declared effective under the Securities Act or (3) all Registrable Securities
may be sold pursuant to subsection (k) of Rule 144.
10
Notwithstanding any other provision hereof, the Issuer may postpone or
suspend the filing or the effectiveness of a Registration Statement (or any
amendments or supplements thereto), if (1) such action is required by applicable
law, or (2) such action is taken by the Issuer in good faith and for valid
business reasons (not including avoidance of the Issuer's obligations
hereunder), including the acquisition or divestiture of assets, other pending
corporate developments, public filings with the Commission or other similar
events, so long as the Issuer promptly thereafter complies with the requirements
of Section 5(b) hereof, if applicable. The Effective Period shall be extended
------------
by the number of days during which the effectiveness of a Registration Statement
is suspended.
(b) Subsequent Shelf Registrations. If the Initial Shelf
------------------------------
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effective Period after the
Effective Date, the Issuer may attempt to obtain the withdrawal of any order
suspending the effectiveness thereof, and may amend such Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
applicable to the Initial Securities pursuant to Rule 415 covering all of such
Registrable Securities remaining unsold (a "Subsequent Shelf Registration
-----------------------------
Statement"). If a Subsequent Shelf Registration Statement is declared
---------
effective, the Issuer shall use its reasonable best efforts to keep such
Subsequent Shelf Registration Statement continuously effective for a period
beyond the Effective Period equal to the aggregate number of days from the date
of the order suspending the effectiveness of the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement to the date of the
effectiveness of the applicable Subsequent Shelf Registration Statement. As
used herein, the term "Shelf Registration Statement" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement.
SECTION 4. Additional Interest for Illiquidity.
-----------------------------------
(a) The Issuer acknowledges and agrees that the Initial Purchasers
(and any subsequent holders of the Initial Securities) have acquired the Initial
Securities in reliance on the Issuer's covenant to use its reasonable best
efforts (i) to cause to become effective on or prior to the Effective Date (A)
the Exchange Offer Registration Statement or (B) an Initial Shelf Registration
Statement, and (ii) to maintain the respective effectiveness of such
Registration Statements as described herein. The Issuer further acknowledges
and agrees that the failure of the Issuer to fulfill such covenants will have an
adverse effect on the holders of the Initial Securities. Therefore, the Issuer
agrees that from and after the date on which any Illiquidity Event
11
occurs, additional interest (in addition to the interest otherwise payable with
respect to the Registrable Securities) shall accrue with respect to the Initial
Securities until but not including the date on which such Illiquidity Event
shall cease to exist (and provided no other Illiquidity Event with respect to
any Initial Securities shall then be continuing), at the rate of one half of one
percent (0.50%) per annum, which additional interest shall be payable by the
Issuer to the holders of all Initial Securities at the times, in the manner and
subject to the same terms and conditions set forth in the Indenture, as nearly
as may be, as though the interest rates provided in such Initial Securities had
been increased by one half of one percent (0.50%) per annum. Subject to the
provisions of this Section 4, the Issuer agrees that it shall be liable to the
---------
holders of all Initial Securities for the payment of any and all additional
interest on the Initial Securities that shall accrue pursuant to this Section 4.
---------
Any such additional interest accrued on any such Initial Securities
but unpaid on the date on which such interest ceases to accrue (the "Cure Date")
---------
shall be due and payable on the first interest payment date following the next
record date following such Cure Date (or the record date occurring on such Cure
Date, if such Cure Date is a record date) to the holders of record of such
Initial Securities on such record date.
(b) The Issuer shall promptly notify the holders of the Initial
Securities and the Trustee of the occurrence of any Illiquidity Event of which
it has knowledge.
Notwithstanding the foregoing, the Issuer shall not be required to pay
the additional interest described in clause (a) of this Section 4 to a holder
---------
with respect to the Registrable Securities held by such holder if the applicable
Illiquidity Event arises by reason of the failure of such holder to provide such
information as (i) the Issuer may reasonably request, with reasonable prior
written notice, for use in the Shelf Registration Statement or any Prospectus
included therein to the extent the Issuer reasonably determines that such
information is required to be included therein by applicable law, (ii) the NASD
or the Commission may request in connection with such Shelf Registration
Statement, or (iii) is required to comply with the agreements of such holder
contained in clause (a) of Section 3 to the extent compliance thereof is
---------
necessary for the Shelf Registration Statement to be declared effective.
SECTION 5. Registration Procedures. In connection with the
-----------------------
registration of any Registrable Securities or Exchange Securities pursuant to
Sections 2 and 3 hereof, the Issuer shall use its reasonable best efforts to
---------- -
effect such registration to permit the sale of such Registrable Securities or
Exchange Securities in accordance
12
with any permitted intended method or methods of disposition thereof, and
pursuant thereto the Issuer shall:
(a) prepare and cause to be filed with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2 and 3 of this
---------- -
Agreement, and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective for the applicable period as
provided herein; provided, however, that (i) during the period in which the
-------- -------
Initial Registration Statement is open for the Restricted Persons, the Issuer
shall afford any Restricted Person which is a holder of Registrable Securities
or Exchange Securities and the Special Counsel, upon such holder's written
request to the Issuer, an opportunity to review copies of all such documents
proposed to be filed, and (ii) if such filing is pursuant to Section 3, before
---------
filing any Registration Statement or Prospectus or any amendments or supplements
thereto (including documents that would be incorporated therein by reference
after the initial filing of the Registration Statement), the Issuer shall afford
the Special Counsel for all holders of the Registrable Securities covered by
such Registration Statement an opportunity to review copies of all such
documents proposed to be filed;
(b) prepare and cause to be filed with the Commission such amendments
and post-effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement continuously effective for the applicable
period as provided herein; cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and comply with the provisions of the Securities Act, the Exchange Act and the
rules and regulations of the Commission promulgated thereunder with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented in accordance with the intended
methods of disposition by the sellers of Registrable Securities covered thereby
set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to Section 3
---------
hereof, notify the selling holders of Registrable Securities promptly after the
Issuer becomes aware thereof, and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use
13
of any preliminary prospectus or Prospectus or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification or exemption from qualification
of a Registration Statement or any of the Registrable Securities for offer or
sale in any jurisdiction, or the initiation of any proceeding for such purpose,
(v) of the existence of any fact known to the Issuer which results in such
Registration Statement or related Prospectus or any document incorporated
therein by reference containing any untrue statement of a material fact or
omitting to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (which notice may be accompanied by an instruction
that such notice constitutes material non-public information and to suspend the
use of the prospectus until the requisite changes have been made, and which
instruction shall require that such holders shall not communicate such material
non-public information to any third party and shall not sell or purchase, or
offer to sell or purchase, any securities of the Issuer after receipt of such
notice) and (vi) if the Issuer reasonably determines that the filing of a post-
effective amendment to such Registration Statement would be appropriate;
(d) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
use its reasonable efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction and, if any such order is issued, to obtain the withdrawal of any
such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
furnish to each selling holder of Registrable Securities who so requests (at
such holder's address set forth in the Securities Register) without charge, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(f) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
deliver to each selling holder of Registrable Securities without charge, as many
copies of the Prospectus (including each preliminary prospectus) and each
amendment or supplement thereto as such persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Issuer hereby consents to
---------
the use of such Prospectus and each amendment or supplement thereto by each of
the selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of
14
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto;
(g) prior to any public offering of Registrable Securities, register
or qualify, or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification), of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
the selling holders reasonably request in writing (provided that, if Registrable
---------
Securities are offered other than through an Underwritten Offering, the Issuer
agrees to cause its counsel to perform blue sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
-------
5(g)); keep each such registration or qualification (or exemption therefrom)
----
effective during the period such Registration Statement is required to be kept
effective; and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
-------- -------
Issuer will not be required to qualify as a foreign corporation, or to do
business, to file a general consent or take any action which would subject it to
service of process in any jurisdiction or take any action which would subject
itself to taxation in any such jurisdiction;
(h) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
cooperate with the Trustee and the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company, and enable such Registrable Securities to be in such
authorized denominations and registered in such names as the holders may
reasonably request at least three (3) Business Days prior to any such sale;
(i) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
upon the occurrence of any event contemplated by Section 5(c), prepare a
------------
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Issuer so notifies the holders to
suspend the use of the Prospectus after the occurrence of such an event, the
holders shall suspend use of the Prospectus, and not communicate such material
non-public information to any third party, and not sell or
15
purchase, or offer to sell or purchase, any securities of the Issuer, until the
Issuer has amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to continue to be rated by the
Rating Agencies during the period that the Registration Statement is required
hereunder to remain effective (it being acknowledged, however, that the
foregoing shall not be deemed to require the Issuer to maintain the rating of
such Registrable Securities at the rating given the Initial Securities);
(k) prior to the effective date of the first Registration Statement
relating to the Registrable Securities or the Exchange Securities, as the case
may be, (i) provide the Trustee with printed certificates for such securities in
definitive form or in a global form eligible for deposit with The Depository
Trust Company and (ii) provide a CUSIP number for such Registrable Securities or
Exchange Securities represented by such certificates;
(l) if a Shelf Registration Statement is filed pursuant to Section 3,
---------
enter into such reasonably required agreements and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of such Registrable Securities;
(m) in the event of any Underwritten Offering (which shall only be
undertaken at the request of a majority in interest of the holders of
Registrable Securities), if a Shelf Registration Statement is filed pursuant to
Section 3, make available prior to the filing thereof for inspection by a
---------
representative of the holders of a majority in aggregate principal amount of the
Registrable Securities being sold, and the Special Counsel, on the one hand, or
underwriter on the other hand (collectively, the "Inspectors"), during
----------
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Issuer and its subsidiaries (collectively, the
"Records"), and cause the officers, management committee members and employees
-------
of the Issuer and its subsidiaries to supply all relevant information as shall
be reasonably necessary to enable them to exercise any applicable due diligence
responsibilities; provided, however, that, as a condition to supplying such
-------- -------
information, the Issuer shall receive an agreement in writing from the Special
Counsel agreeing that any information that is designated in writing by the
Issuer, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Inspector (other than as to
holders of Registrable Securities) and by any holders of Registrable Securities
receiving such information, unless (i) disclosure of such information is
required pursuant to applicable law or by court or administrative
16
order, (ii) disclosure of such information is, in the reasonable opinion of
counsel to the Issuer, necessary to avoid or correct a misstatement or omission
of a material fact in the Registration Statement, Prospectus or any supplement
or post-effective amendment thereto or disclosure is otherwise required by law,
(iii) such information becomes generally available to the public other than as a
result of a disclosure by any Inspector or any such holder of Registrable
Securities in violation of this Section 5(m) or (iv) such information is
------------
approved for release by the Issuer, in writing;
(n) use its best efforts to cause the Indenture or the trust
indenture provided for in Section 2, as the case may be, to be qualified under
---------
the TIA not later than the effective date of such Registration Statement; and,
in connection therewith, cooperate with the Trustee and the holders of the
Registrable Securities to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause such Trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable the Indenture or
the trust indenture provided for in Section 2 to be so qualified in a timely
---------
manner;
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5, references
---------
to a Shelf Registration Statement, including a Shelf Registration Statement
filed pursuant to Section 3, shall be deemed to include any Registration
---------
Statement, filed pursuant to Section 2, which covers, for the period set forth
---------
therein, resales of Exchange Securities held by Restricted Persons as provided
in Section 2, and, in connection with such resales such Restricted Persons shall
---------
be entitled to exercise all rights, receive all notices and copies of documents,
and otherwise receive all benefits afforded to sellers or holders of Registrable
Securities under this Section 5 in connection with a Shelf Registration
---------
Statement. Without limiting the generality of the foregoing, the Issuer agrees
to fulfill its obligations set forth in Sections 5(a), (b), (c), (d), (e), (f),
------------- --- --- --- --- ---
(h), (i), (l) and (m) with respect to any such Registration Statement filed
--- --- --- ---
pursuant to Section 2 insofar as it covers such resales.
---------
The Issuer may require each seller of Registrable Securities as to
which any registration is being effected, as a condition thereto, to furnish to
the Issuer such information regarding the holder and the distribution of such
Registrable Securities as the Issuer may, from time to time, request in writing,
including without limitation stating that (i) it is not an Affiliate of the
Issuer, (ii) the amount of
17
Registrable Securities held by such holder prior to the Exchange Offer, (iii)
the amount of Registrable Securities owned by such holder to be exchanged in the
Exchange Offer and representing that such holder is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued, and (iv)
it is acquiring the Exchange Securities in its ordinary course of business and
to covenant and agree to promptly notify the Issuer if any such information so
provided by such seller ceases to be true and correct and will promptly
thereafter furnish the Issuer with corrected information. The Issuer may exclude
from such registration the Registrable Securities of any Person who fails to
furnish such information (or any information required to be included in the
applicable Registration Statement with respect to such holder) within a
reasonable time after receiving such request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Issuer of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
---------------- ---------
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such holder shall forthwith discontinue
-------- ------- --------
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such holder is advised in writing (the "Advice")
------
by the Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto and, if so directed by
the Issuer, such holder will deliver to the Issuer (at its expense) all copies
in its possession, other than permanent file copies then in such holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice, or certify in writing as to the destruction
thereof. In the event the Issuer shall give any such notice, the length of the
Effective Period shall be extended by the number of days during such period from
and including the date of the giving of such notice to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) or (y) the Advice.
------------
SECTION 6. Delivery of Prospectus; Notification Upon Resale. The
------------------------------------------------
Initial Purchasers acknowledge that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its own
account in exchange for Registrable Securities pursuant to the Exchange Offer
must deliver a prospectus in connection with any resale of such Resale
Securities. By so acknowledging, such Initial Purchasers shall not be deemed to
admit that, by delivering a prospectus, it is an underwriter within the meaning
of the Securities Act.
18
The Initial Purchasers shall notify the Issuer promptly upon the
completion of the resale of the Resale Securities received by such Initial
Purchasers pursuant to the Exchange Offer.
SECTION 7. Registration Expenses.
---------------------
The Issuer shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4; provided, however,
---------- - - -------- -------
that the Issuer shall bear or reimburse the holders for the reasonable fees and
disbursements of only one counsel, the Special Counsel, in accordance with the
terms of the Purchase Agreement; provided, further, however, that in the event
-------- ------- -------
of an Underwritten Offering, the Issuer shall not be responsible for any fees
and expenses of any underwriter, including any underwriting discounts and
commissions or any legal fees and expenses of counsel to the underwriters
(except for the reasonable fees and disbursements of counsel in connection with
state securities or blue sky qualification of any of the Registrable Securities
or the Exchange Securities).
SECTION 8. Indemnification and Contribution.
--------------------------------
(a) The Issuer agrees to (A) indemnify and hold harmless each holder
of Registrable Securities (including any Initial Purchaser which holds
Registrable Securities, including Resale Securities, for its own account (each,
a "Resale Initial Purchaser") and each Person, if any, who controls any such
------------------------
Person within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee or agent of each such Person (each a "Holder
------
Indemnified Party") against any and all losses, claims, damages or liabilities,
-----------------
joint or several, to which they or any of them are subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement covering Registrable Securities held by such person
or any Prospectus relating to any such Registration Statement, or any amendment
thereof or supplement thereto and all documents incorporated by reference
therein, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not misleading, and (B)
reimburse each such Holder Indemnified Party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the
-------- -------
19
Issuer will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or Prospectus, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written information
relating to such holder provided by such holder to the Issuer specifically for
use therein (collectively, the "Holder Information"); provided, further,
------------------ -------- -------
however, that the indemnity obligations arising out of this Section 8 with
------- ---------
respect to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary Prospectus shall not inure to the
benefit of any holder or any controlling Person of such holder if such holder
failed to send or deliver to the Person asserting any such losses a copy of the
final Prospectus with or prior to the delivery of the written confirmation of
the sale of the Registrable Securities or the Exchange Securities, as the case
may be, if a prospectus relating to such Registrable Securities or Exchange
Securities was required to be delivered by such holder under the Securities Act,
and such final Prospectus would have cured the untrue statement or omission
giving rise to such losses if the Issuer had previously furnished copies thereof
to such holder. This indemnity agreement will be in addition to any liability
which the Issuer may otherwise have.
(b) As a condition to the inclusion of a holder's Registrable
Securities in a Registration Statement, such holder shall agree to (i) indemnify
and hold harmless the Issuer and each person who controls the Issuer within the
meaning of either the Securities Act or the Exchange Act, and each director,
management committee member, officer, employee or agent of each such person,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them are subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a Registration
Statement covering Registrable Securities held by such holder or any Prospectus
relating to any such Registration Statement or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading, and (ii) reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; in each and every case under clause (i) and (ii) above to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such Registration Statement or
Prospectus or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with the Holder Informa-
20
tion. This indemnity agreement will be in addition to any liability which any
such holder may otherwise have. In no event shall the liability of any selling
holder of Registrable Securities hereunder be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by such holder
upon the sale (or, in the case of Resale Securities, the resale) of the
Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this Section
-------
8 of notice of the commencement of any action, such indemnified party will, if a
-
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof
---------
(enclosing a copy of all papers served); but the omission to so notify the
indemnifying party (i) shall not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such omission results in the forfeiture by the indemnifying party or
material impairment of substantial rights and defenses and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligations provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election to so assume the defense of such claim or
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
---------
such indemnified party in connection with the defense thereof other than costs
of investigation; provided that if (i) the defendants in any such action include
--------
both the indemnified party and the indemnifying party and the indemnified party
shall have received the written opinion of counsel that representation of both
parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, or (ii) the indemnifying party shall not
have employed counsel for the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action,
then the indemnified party or parties shall have the right to select one firm of
separate counsel (in addition to the fees and expenses of local counsel) to
assert any separate legal defenses and to otherwise defend such action on behalf
of such indemnified party or parties. No indemnifying party shall be liable for
any settlement of any action or claim for monetary damages which an indemnified
party may effect without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
21
(d) If the indemnification provided for in Section 8(a) or (b) hereof
------------ ---
is for any reason, other than as specified in such provisions, unavailable to or
insufficient to hold harmless an indemnified party, then each indemnifying party
shall contribute to the aggregate losses, claims, damages or liabilities (or
actions in respect thereof) referred to in Section 8(a) or (b) hereof in such
------------ ---
proportion as is appropriate to reflect the relative fault and benefits to the
Issuer on the one hand and such holders on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the Issuer and such holders
shall be determined by reference to, among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
any untrue statement or omission. The obligations of the holders in this
Section 8(d) are several in proportion to their respective obligations hereunder
------------
and not joint. Notwithstanding the provisions of this Section 8(d), in no event
------------
shall any holder of Registrable Securities be required to contribute any amount
which is in excess of (i) the aggregate principal amount of Initial Securities
sold or exchanged by such holder less (ii) the amount of any damages that such
person has otherwise been required to pay by reason of such alleged untrue
statement or omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
-------------
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each Holder Indemnified
---------
Party shall have the same rights to contribution as a holder, and each person
who controls the Issuer within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee and agent of such person,
shall have the same rights to contribution as the Issuer, subject in each case
to the applicable terms and conditions of this Section 8(d). Any party entitled
------------
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
-------
8(d), notify such party or parties from whom contribution may be sought; but the
----
omission to so notify such party or parties (x) shall not relieve the party or
parties from whom contribution may be sought from any liability under this
Section 8(d) unless and to the extent it did not otherwise learn of such action
------------
and such omission results in the forfeiture by the party or parties from whom
contribution may be sought or material impairment of substantial rights and
defenses and (y) shall not, in any event, relieve such party or parties from any
obligations other than under this Section 8(d).
------------
(e) The provisions of this Section 8 will remain in full force and
---------
effect, regardless of any investigation made by or on behalf of any holder of
Registrable Securities, the Initial Purchasers, the Issuer or any of the
officers, directors or
22
controlling persons referred to in this Section 8 and will survive the sale (or,
---------
in the case of Resale Securities, the resale) by a holder of Registrable
Securities of such Registrable Securities.
SECTION 9. Underwritten Registrations (If Any). No holder may
----------------------------------
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Issuer, unless such holder (a)
agrees to sell such holder's Initial Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
SECTION 10. Termination. In the event that no Initial Securities are
-----------
sold to the Initial Purchasers pursuant to the Purchase Agreement, this
Agreement shall automatically terminate, without liability on the part of any
party. Upon the fulfillment of all obligations on the part of the Issuer to
register the Initial Securities as set forth herein (including maintaining the
effectiveness of any applicable Registration Statements), this Agreement shall
terminate; provided that the provisions of Sections 7 and 8 hereof shall survive
-------- ---------- -
any termination and remain in full force and effect.
SECTION 11. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Issuer has not, as of the date
--------------------------
hereof, entered into, and shall not, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuer has obtained the written consent of holders
of at least a majority of the then outstanding aggregate principal amount of the
Registrable Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2, of Exchange Securities); provided that, with respect
--------- --------
to any matter that directly or indirectly affects the rights of any Restricted
Person hereunder occurring within the period in which the Initial Registration
Statement is open for the Restricted Persons, the Issuer shall obtain the
written consent of each such Restricted Person
23
against which such amendment, modification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except for the foregoing proviso),
a waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of holders of Registrable
Securities whose securities are being sold or exchanged pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by holders of at
least a majority in aggregate principal amount of the Registrable Securities
being sold or exchanged by such holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
-------- -------
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Resale Initial Purchasers and that does not
directly or indirectly affect the rights of holders of Registrable Securities or
Exchange Securities may be given by each of the Resale Initial Purchasers
affected thereby.
(c) Notices. All notices and other communications (including,
-------
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing and delivered by hand
delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Issuer in accordance with the
provisions of this Section 11(c), which address initially is, with respect
-------------
to the Initial Purchasers, at the address set forth in the Purchase
Agreement and thereafter at the address for such holders of Registrable
Securities set forth in the Security Register applicable to such
Registrable Securities; and
(ii) if to the Issuer, initially at the address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 11(c).
-------------
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; one (1) Business
Day after being timely delivered to a next-day air courier; and when received,
if telecopied.
24
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment or any consent by the Issuer thereto, subsequent holders of
Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof (other than Section 5-1401 of the New
York General Obligations Law). Each of the parties hereto hereby submits to the
non-exclusive jurisdiction of the Federal and State Courts of the Borough of
Manhattan in the City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
(h) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This Agreement, together with the Purchase
25
Agreement, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(j) Securities Held by the Issuer, etc. Whenever the consent or
-----------------------------------
approval of holders of a specified percentage of principal amount of Registrable
Securities is required hereunder, Registrable Securities held by the Issuer or
any of its Affiliates (other than subsequent holders of Registrable Securities
if such subsequent holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
26
Please confirm that the foregoing correctly sets forth this agreement
between the Issuer and you.
Very truly yours,
XXXXXX ENERGY LLC
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Authorized Representative
Accepted in New York, New York
October 12, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Representative of the Initial Purchasers
By: /s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice-President
