EXHIBIT 10.1
EXECUTION COPY
EDISON MISSION HOLDINGS CO.
$300,000,000 8.137% Senior Secured Bonds due 2019
$530,000,000 8.734% Senior Secured Bonds due 2026
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
May 27, 1999
LEHMAN BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
SG COWEN SECURITIES CORP.
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
In connection with the issue and sale of $300 million in
aggregate principal amount of 8.137% Senior Secured Bonds due 2019 and $530
million in aggregate principal amount of 8.734% Senior Secured Bonds due 2026
(the "INITIAL SECURITIES") issued by Edison Mission Holdings Co., a California
corporation (the "COMPANY"), pursuant to the terms of the Indenture (as defined
below) and as an inducement to Lehman Brothers Inc., Credit Suisse First Boston
Corporation, Salomon Smith Barney Inc. and SG Cowen Securities Corp. (the
"INITIAL PURCHASERS") to enter into the Purchase Agreement dated May 21, 1999
(the "PURCHASE AGREEMENT"), among the Company, Edison Mission Energy ("EME"),
EME Homer City Generation L.P. ("EME HOMER CITY"), Edison Mission Finance Co.
("FINANCECO"), Homer City Property Holdings, Inc. ("PROPERTYCO"), Mission Energy
Westside, Inc. ("ME WESTSIDE") and Chestnut Ridge Energy Company ("CHESTNUT
RIDGE" and, collectively with EME, EME Homer City, FinanceCo, PropertyCo and ME
Westside, the "GUARANTORS") and the Initial Purchasers, the Company and the
Guarantors hereby agree to provide the registration rights set forth in this
Registration Rights Agreement (this "AGREEMENT") for the benefit of the holders
of the Initial Securities. The execution of this Agreement is a condition to the
purchase of the Initial Securities under the Purchase Agreement.
SECTION 1. DEFINITIONS. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall
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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 Company or any Guarantor 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.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement.
"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.
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"EXCHANGE SECURITIES" shall have the meaning set forth in
SECTION 2(a) of this Agreement.
"GUARANTORS" shall have the meaning set forth in the first
paragraph 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 Initial 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
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commenced or (ii) an Initial Shelf Registration Statement covering
such Registrable Securities shall become effective; or
(ii) in the case of an Illiquidity Event described in clause
(b) above, either (i) an Exchange Offer Registration Statement (which,
if applicable pursuant to SECTION 2(a), covers resales of the Exchange
Securities offered in exchange for such Initial Securities) shall
become effective and an Exchange Offer for such Registrable Securities
shall have commenced pursuant to an Exchange Offer Registration
Statement or (ii) an Initial Shelf Registration Statement covering such
Registrable Securities shall become effective; or
(iii) in the case of an Illiquidity Event described in clause
(c) above, a Subsequent Shelf Registration Statement covering such
Registrable Securities shall become effective.
"INDENTURE" shall mean the Indenture dated as of May 27, 1999,
and as further amended or supplemented from time to time in accordance with the
terms thereof, between the Company and the Trustee, and pursuant to which the
Initial Securities and any Exchange 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.
"MANAGING UNDERWRITERS" shall mean the investment banker or
investment bankers and manager or managers that shall administer an Underwritten
Offering.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments and all material incorporated by reference into such
prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
first paragraph of this Agreement.
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"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 Company 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 Company and the Guarantors
that covers any of the Registrable Securities or the Exchange Securities, as the
case may be, pursuant to the provisions of this Agreement, including the
Prospectus which is part of such Registration Statement, amendments (including
post-effective amendments) and supplements to such Registration Statement and
all exhibits and appendices to any of the foregoing. For purposes of the
foregoing, unless the context requires otherwise, a Registration Statement for
an Exchange Offer shall not be deemed to cover Registrable Securities held by a
Restricted Person unless such Registration Statement covers the resale of Resale
Securities to be received by such Restricted Person pursuant to such Exchange
Offer and any such Initial Securities shall continue to be Registrable
Securities.
"RESALE INITIAL PURCHASER" shall have the meaning set forth in
SECTION 8(a) of this Agreement.
"RESALE SECURITIES" shall mean any Exchange Security received
by a Restricted Person pursuant to an Exchange Offer, and at all times
subsequent thereto, until, subject to the time periods set forth herein, such
Exchange Security has been resold by such Restricted Person.
"RESTRICTED PERSON" shall mean (a) any Affiliate of the
Company or any Guarantor, (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
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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.
"SPECIAL COUNSEL" shall mean Simpson Thacher & Bartlett,
special counsel to the Initial Purchasers, or any other firm acceptable to the
Company, 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 United States Trust Company of New York,
its successors and any successor trustee under the Indenture.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall
mean a registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
SECTION 2. EXCHANGE OFFER.
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(a) Unless the Company determines in good faith that the
Exchange Offer shall not be permissible under applicable law or Commission
policy, the Company and the Guarantors 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 Company that are guaranteed
by the Guarantors and are otherwise in all material respects substantially
identical to the Initial Securities (the "EXCHANGE SECURITIES") (and which are
entitled to the benefits of the Indenture, which shall be qualified under the
TIA in connection with such registration, or a trust indenture which is
substantially identical in all material respects to the Indenture), other than
(i) such changes to the Indenture or any such substantially identical indenture
as the Trustee and the Company may deem necessary in connection with the
Trustee's rights and duties or to comply with any requirements of the Commission
to effect or maintain the qualification thereof under the TIA and (ii) such
changes relating to restrictions on transfer set forth in the Indenture. The
Exchange Offer shall be registered under the Securities Act on the appropriate
form of Registration Statement and shall comply with all applicable tender offer
rules and regulations under the Exchange Act and with all other applicable laws.
Subject to the terms and limitations of SECTION 2(c), such Exchange Offer
Registration Statement may also cover any resales of Exchange Securities by any
Restricted Person, in the manner or manners designated by them which, in any
event, is reasonably acceptable to the Company.
The Company and the Guarantors shall use their respective
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 Company 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 Company promptly after
re-selling all Resale Securities held by such Restricted Person which are
covered by any such Registration Statement.
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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 Company or the Guarantors, (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 Company and the Guarantors shall,
subject to SECTIONS 2(b) and 2(c), have no further obligation to register
Registrable Securities pursuant to SECTION 3(a) of this Agreement; PROVIDED that
the other provisions of this Agreement shall continue to apply as set forth in
such provisions.
(b) In the event that the Company 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 Company and the Guarantors 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), neither the Company nor any of the Guarantors shall have any
further obligation under this SECTION 2.
(c) In the event that the Company 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 Company and the Guarantors shall promptly deliver a
Shelf Notice to the Restricted Persons who are holders of Registrable Securities
and to the Trustee, and the Company and the Guarantors 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
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otherwise required to be delivered pursuant to SECTION 2(b); and, PROVIDED,
FURTHER that such Initial Shelf Registration Statement covering Registrable
Securities held by Restricted Persons shall be kept effective for at least a
period of 120 days and is not required to remain effective with respect to
Registrable Securities held by Restricted Persons thereafter. Following the
delivery of a Shelf Notice in accordance with this SECTION 2(c) and compliance
with SECTION 3(a), neither the Company nor any of the Guarantors shall have any
further obligation under this Section 2 with respect to the filing of an offer
to exchange the Registrable Securities held by the Restricted Persons
(including, without limitation, any obligation to provide that an Exchange Offer
Registration Statement filed pursuant to SECTION 2(a) cover resales of Exchange
Securities by Restricted Persons); PROVIDED that the provisions of this
SECTION 2 shall otherwise remain in full force and effect with respect to
Registrable Securities held by any person other than a Restricted Person.
SECTION 3. SHELF REGISTRATION; REGISTRABLE SECURITIES. With
respect to the Registrable Securities, if a Shelf Notice is delivered in
accordance with SECTION 2(b) or 2(c) of this Agreement, then the Company and the
Guarantors shall comply with the following provisions of this SECTION 3:
(a) INITIAL SHELF REGISTRATION. The Company and the Guarantors
shall prepare and cause to be filed with the Commission a Registration Statement
for an offering to be made on a continuous basis other than pursuant to an
Underwritten Offer pursuant to Rule 415 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 Company
(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 Company all information required to
be disclosed in order to make the information previously furnished to the
Company 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 Company and the Guarantors shall use their respective reasonable
best efforts to (A) cause the Initial Shelf Registration Statement to be
declared effective under the Securities Act on or prior to the Effective Date
and (B) keep the Initial Shelf Registration Statement continuously effective
under the Securities Act for a period of two years after the Closing Date
(subject to extension pursuant to the last paragraph of SECTION 5 and subject,
with respect to Registrable Securities held by Restricted Persons, to the
limitations set forth in SECTION 2(c)) (such two-year period, as it may be
extended, being the "Effective Period"), or such shorter period ending when
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(1) all Registrable Securities covered by the Initial Shelf Registration
Statement have been sold or (2) a Subsequent Shelf Registration Statement
covering all of such Registrable Securities remaining unsold has been declared
effective under the Securities Act or (3) all Registrable Securities may be sold
pursuant to subsection (k) of Rule 144.
Notwithstanding any other provision hereof, the Company and
the Guarantors 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 Company
and the Guarantors in good faith and for valid business reasons (not including
avoidance of such party'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 Company and the
Guarantors promptly thereafter comply with the requirements of SECTION 5(b)
hereof, if applicable. Notwithstanding the occurrence of any event referred to
in the immediately preceding sentence (a "SUSPENSION"), such event shall not
suspend, postpone or in any other manner affect the running of the time period
after which an Illiquidity Event shall be deemed to occur and, if the filing or
effectiveness of a Registration Statement is postponed or suspended as a result
of a Suspension, an Illiquidity Event shall nonetheless exist if all other
requirements set forth for the occurrence of an Illiquidity Event shall be
satisfied, and the provisions of SECTION 4 requiring the accrual payment of
additional interest, as set forth in such Section, on the Registrable
Securities, shall be applicable.
(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 Company and the Guarantors 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 Company and the Guarantors shall use their respective reasonable best
efforts to keep such Shelf Registration Statement continuously effective for a
period after the date of such effectiveness equal in length to the length of the
Effective Period plus the aggregate number of days from the date of the order
suspending the effectiveness of the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement to the date of the effectiveness of the
Subsequent Shelf Registration Statement. As used herein, the term "Shelf
Registration Statement" means the Initial Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
SECTION 4. ADDITIONAL INTEREST FOR ILLIQUIDITY.
(a) The Company and the Guarantors acknowledge and agree that
the Initial
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Purchasers (and any subsequent holders of the Initial Securities) have acquired
the Initial Securities in reliance on the covenant of the Company and the
Guarantors to use their respective reasonable best efforts to (i) cause to
become effective on or prior to the Effective Date (A) the Exchange Offer
Registration Statement or (B) an Initial Shelf Registration Statement, and (ii)
maintain the respective effectiveness of such Registration Statements as
described herein. The Company and the Guarantors further acknowledge and agree
that the failure of the Company and the Guarantors to fulfill such covenants
will have an adverse effect on the holders of the Initial Securities. Therefore,
the Company and the Guarantors agree that from and after the date on which any
Illiquidity Event occurs, additional interest (in addition to the interest
otherwise payable with respect to the Registrable Securities) shall accrue with
respect to the Initial Securities until but not including the date on which such
Illiquidity Event shall cease to exist (and provided no other Illiquidity Event
with respect to any Initial Securities shall then be continuing), at the rate of
one half of one percent (0.50%) per annum, which additional interest shall be
payable by the Company 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 Company and the
Guarantors agree that each of them 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 Company 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 Company and the Guarantors
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 Company may reasonably
request, with reasonable prior written notice, for use in the Shelf Registration
Statement or any Prospectus included therein to the extent the Company
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
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Registrable Securities or Exchange Securities pursuant to SECTIONS 2 and 3
hereof, the Company and the Guarantors shall use their respective reasonable
best efforts to effect such registration to permit the sale of such Registrable
Securities or Exchange Securities in accordance with any permitted intended
method or methods of disposition thereof, and pursuant thereto the Company and
the Guarantors shall:
(a) prepare and cause to be filed with the Commission a Registration Statement
or Registration Statements as prescribed by SECTIONS 2 and 3 of this Agreement,
and use their respective 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 Company 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 Company, 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 Company shall afford the
Special Counsel for all holders of the Registrable Securities covered by such
Registration Statement an opportunity to review copies of all such documents
proposed to be filed;
(b) prepare and cause to be filed with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Registration Statement continuously effective for
the applicable period as provided herein; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented in
accordance with the intended methods of disposition by the sellers of
Registrable Securities covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to
SECTION 3 hereof, notify the selling holders of Registrable Securities promptly
after the Company or any Guarantor 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 of any
preliminary prospectus or Prospectus or the initiation of any proceedings for
that purpose, (iv) of the receipt by the Company or any Guarantor 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
13
sale in any jurisdiction, or the initiation of any proceeding for such purpose,
(v) of the existence of any fact known to the Company or any Guarantor 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 Company or any
Guarantor after receipt of such notice) and (vi) if the Company 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 Company and each
Guarantor hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto;
(g) prior to any public offering of Registrable Securities,
register or qualify, or cooperate with the selling holders of Registrable
Securities, the 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
14
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 Company and the
Guarantors agree to cause their 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 neither the Company nor any Guarantor will be required to qualify as a
foreign corporation, or to do business, to file a general consent or take any
action which would subject it to service of process in any jurisdiction or take
any action which would subject itself to taxation in any such jurisdiction;
(h) if a Shelf Registration Statement is filed pursuant to
SECTION 3, cooperate with the Trustee and the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company, and enable such Registrable Securities to be in
such authorized denominations and registered in such names as the holders may
reasonably request at least three Business Days prior to any such sale;
(i) if a Shelf Registration Statement is filed pursuant to
SECTION 3, upon the occurrence of any event contemplated by SECTION 5(c),
prepare a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company and the Guarantors so
notify the holders to suspend the use of the Prospectus after the occurrence of
such an event, the holders shall suspend use of the Prospectus, and not
communicate such material non-public information to any third party, and not
sell or purchase, or offer to sell or purchase, any securities of the Company
and the Guarantors, until the Company and the Guarantors have amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) use their respective reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to continue to be
rated by the rating agencies that initially rated the Initial Securities during
the period that the Registration Statement is required hereunder to remain
effective (it being acknowledged, however, that the foregoing shall not be
deemed to require the Company and the Guarantors 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
15
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 Depositary
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 option of the Company), 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 Company and the Guarantors (collectively, the
"RECORDS"), and cause the officers, directors and employees of the Company and
the Guarantors 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 Company shall receive an agreement in writing from the Special
Counsel agreeing that any information that is designated in writing by the
Company or any of the Guarantors, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Inspector (other
than as to holders of Registrable Securities) and by any holders of Registrable
Securities receiving such information, unless (i) disclosure of such information
is required pursuant to applicable law or by court or administrative order, (ii)
disclosure of such information is, in the reasonable opinion of counsel to the
Company and the Guarantors, 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 Company and the Guarantors, in
writing;
(n) use their respective best efforts to cause the Indenture
or the trust indenture provided for in SECTION 2, as the case may be, to be
qualified under the TIA not later than the effective date of such Registration
Statement; and, in connection therewith, cooperate with the Trustee under the
Indenture and the holders of the Registrable Securities to effect such changes
to the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts to
cause such Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
Commission to enable the Indenture or the trust indenture provided for in
SECTION 2 to be so qualified in a timely manner;
16
(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 Company and the Guarantors agree to fulfill their respective 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 Company may require each seller of Registrable Securities
as to which any registration is being effected, as a condition thereto, to
furnish to the Company such information regarding the holder and the
distribution of such Registrable Securities as the Company may, from time to
time, request in writing, including without limitation stating that (i) it is
not an Affiliate of the Company or any Guarantor, (ii) the amount of Registrable
Securities held by such holder prior to the Exchange Offer, (iii) the amount of
Registrable Securities owned by such holder to be exchanged in the Exchange
Offer and representing that such holder is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued, and (iv)
it is acquiring the Exchange Securities in its ordinary course of business and
to covenant and agree to promptly notify the Company if any such information so
provided by such seller ceases to be true and correct and will promptly
thereafter furnish the Company with corrected information. The Company may
exclude from such registration the Registrable Securities of any Person who
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
SECTION 5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such holder shall
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such holder is advised in writing
(the "ADVICE") by the Company and the Guarantors 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 Company, such holder will deliver
to the Company and the Guarantors (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 Company and the Guarantors 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
17
the date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by SECTION 5(i) or (y) the Advice.
SECTION 6. DELIVERY OF PROSPECTUS; NOTIFICATION UPON RESALE.
The Initial Purchasers acknowledge that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its own
account in exchange for Registrable Securities pursuant to the Exchange Offer
must deliver a prospectus in connection with any resale of such Resale
Securities. By so acknowledging, such Initial Purchasers shall not be deemed to
admit that, by delivering a prospectus, it is an underwriter within the meaning
of the Securities Act.
The Initial Purchasers shall notify the Company and the
Guarantors 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 Company and the
Guarantors shall bear all expenses incurred in connection with the performance
of its obligations under SECTIONS 2, 3 and 4; PROVIDED, HOWEVER, that the
Company and the Guarantors 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 if the Company and the Guarantors permit an Underwritten Offering, neither
the Company nor any of the Guarantors shall 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 Company and the Guarantors agree to (A) indemnify and
hold harmless each holder of Registrable Securities (including any Initial
Purchaser which holds Registrable Securities, including Resale Securities, for
its own account (each, a "RESALE INITIAL PURCHASER") and each Person, if any,
who controls any such Person within the meaning of either the Securities Act or
the Exchange Act and each director, officer, employee or agent of each such
Person (each a "HOLDER INDEMNIFIED PARTY") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them are
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement covering Registrable
Securities held by such person
18
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 neither the Company nor any of the Guarantors will 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 Company and the Guarantors 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, and such
final Prospectus would have cured the untrue statement or omission giving rise
to such losses if the Company and the Guarantors had previously furnished copies
thereof to such holder. This indemnity agreement will be in addition to any
liability which the Company or any Guarantor 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 Company and the Guarantors and each
person who controls the Company or any of the Guarantors within the meaning
of either the Securities Act or the Exchange Act, and each director, officer,
employee or agent of each such person, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them are
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in a Registration Statement covering
Registrable Securities held by such holder or any Prospectus relating to any
such Registration Statement or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not
misleading, and (ii) reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; in each and every case under clause (i) and (ii) above
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such
Registration Statement or Prospectus or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with the Holder
Information. This
19
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, the indemnified party
shall have received the written opinion of counsel reasonably acceptable to
the indemnifying party that representation of both parties by the same
counsel would be inappropriate due to actual or likely conflicts of interest
between them, or (ii) the indemnifying party shall not have employed counsel
for the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action, then the
indemnified party or parties shall have the right to select one firm of
separate counsel (in addition to the fees and expenses of local counsel) to
assert any separate legal defenses and to otherwise defend such action on
behalf of such indemnified party or parties. No indemnifying party shall be
liable for any settlement of any action or claim for monetary damages which
an indemnified party may effect without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in SECTION 8(a) or (b)
hereof is for any reason, other than as specified in such provisions,
unavailable to or insufficient to hold 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 Company and the Guarantors 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
20
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors 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 Company or any Guarantor 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 Company
and the Guarantors, subject in each case to the applicable terms and conditions
of this SECTION 8(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this SECTION 8(d), notify such party or parties from whom
contribution may be sought; but the omission to so notify such party or parties
(x) shall not relieve the party or parties from whom contribution may be sought
from any liability under this paragraph (d) unless and to the extent it did not
otherwise learn of such action and such omission results in the forfeiture by
the party or parties from whom contribution may be sought or material impairment
of substantial rights and defenses and (y) shall not, in any event, relieve such
party or parties from any obligations other than under this SECTION 8(d).
(e) The provisions of this SECTION 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any holder
of Registrable Securities, the Initial Purchasers, the Company, the Guarantors
or any of the officers, directors or 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 Company, 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
21
the part of the Company and the Guarantors 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. Neither the Company nor any
Guarantor has, as of the date hereof, entered into, nor shall, 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 Company and the Guarantors have obtained the
written consent of holders of at least a majority of the then outstanding
aggregate principal amount of the Registrable Securities (or, after the
consummation of any Exchange Offer in accordance with SECTION 2, of Exchange
Securities); provided that, with respect to any matter that directly or
indirectly affects the rights of any Restricted Person hereunder occurring
within the period in which the Initial Registration Statement is open for the
Restricted Persons, the Company and the Guarantors shall obtain the written
consent of each such Restricted Person against which such amendment,
modification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except 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 Company in accordance with
the provisions of this SECTION 11(c),
22
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 Company or any Guarantor, initially at the
address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the
provisions of this SECTION 11(c).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when received,
if telecopied.
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 Company or any Guarantor 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 and the rights and duties of
the parties hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York. 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
23
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(i) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, together with the Purchase Agreement, supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(j) SECURITIES HELD BY THE COMPANY, 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
Company, the Guarantors or any of their respective 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.
Please confirm that the foregoing correctly sets forth this
agreement between the Company, the Guarantors and you.
Very truly yours,
EDISON MISSION HOLDINGS CO.
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President
EDISON MISSION FINANCE CO.
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President
HOMER CITY PROPERTY HOLDINGS,
INC.
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President of
Mission Energy Westside, Inc.
its General Partner
CHESTNUT RIDGE ENERGY COMPANY
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President
MISSION ENERGY WESTSIDE, INC.
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President
EME HOMER CITY GENERATION L.P.
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President of
Mission Energy Westside, Inc.
EDISON MISSION ENERGY
By: /s/ Steven D. Eisenberg
-----------------------
Name: Steven D. Eisenberg
Title: Vice President
Accepted:
LEHMAN BROTHERS INC.,
on behalf of the Initial Purchasers
By: /s/ Frank Napolitano
-----------------------
Name: Frank Napolitano
Title: Senior Vice President