Exhibit 10.73
EXECUTION COPY
$600,000,000
EDISON MISSION ENERGY
7.73% Senior Notes due June 15, 2009
REGISTRATION RIGHTS AGREEMENT
June 23, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORP.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
In connection with the issue and sale of $600 million in aggregate
principal amount of 7.73% Senior Notes due June 15, 2009 (the "INITIAL NOTES")
issued by Edison Mission Energy, a California corporation (the "COMPANY"),
pursuant to the terms of the Indenture (as defined below) and as an inducement
to Credit Suisse First Boston Corporation, Lehman Brothers Inc. and SG Cowen
Securities Corp. (the "INITIAL PURCHASERS") to enter into the Purchase
Agreement, dated June 23, 1999 (the "PURCHASE AGREEMENT"), among the Company and
the Initial Purchasers, the Company 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 Notes. The execution of this Agreement
is a condition to the purchase of the Initial Notes 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 Company 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 Notes.
"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.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a) of
this Agreement.
A "HOLDER" of Registrable Notes 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 Notes 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 Notes) has not
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become effective and (ii) the Registrable Notes are not the subject of an
Initial Shelf Registration Statement which has become effective; or
(b) the Exchange Notes offered in exchange for the Registrable Notes
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 Notes) but which ceased to be effective for any reason prior to the end
of the Exchange Period; or
(c) the Registrable Notes 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
Notes exchanged for such Registrable Notes) shall become effective and
an Exchange Offer for such Registrable Notes shall have commenced or
(ii) an Initial Shelf Registration Statement covering such Registrable
Notes 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
Notes offered in exchange for such Initial Notes) shall become
effective and an Exchange Offer for such Registrable Notes shall have
commenced pursuant to an Exchange Offer Registration Statement or (ii)
an Initial Shelf Registration Statement covering such Registrable Notes
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 Notes shall become effective.
"INDENTURE" shall mean the Indenture, dated as of June 28, 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
Notes and any Exchange Notes are to be issued.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
paragraph of this Agreement.
"INITIAL NOTES" 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)
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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 included in any
Registration Statement, 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 NOTES" shall mean the Initial Notes upon original issuance
thereof and at all times subsequent thereto until, in the case of any such
Initial Note, (i) a Registration Statement covering such Initial Note, or the
Exchange Note to be exchanged for such Initial Note (and, in the case of any
Resale Note, any resale thereof), has been declared effective and such Initial
Note has been disposed of or exchanged (or, in any case where such Registration
Statement covers the resale of Resale Notes, such Initial Note has been
exchanged and the Resale Note received therefor has been resold), as the case
may be, in accordance with such effective Registration Statement, (ii) such
Initial Note is sold in compliance with Rule 144 or would be permitted to be
sold pursuant to Rule 144(k), (iii) such Initial Note 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 Note 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 Note
ceases to be outstanding.
"REGISTRATION STATEMENT" shall mean any registration statement
(including any Shelf Registration Statement) of the Company that covers any of
the Registrable Notes or the Exchange Notes, 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 Notes held by a Restricted Person unless such Registration
Statement covers the resale of Resale Notes to be received by such
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Restricted Person pursuant to such Exchange Offer and any such Initial Notes
shall continue to be Registrable Notes.
"RESALE INITIAL PURCHASER" shall have the meaning set forth in Section
8(a) of this Agreement.
"RESALE NOTES" shall mean any Exchange Note 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 Note has been
resold by such Restricted Person.
"RESTRICTED PERSON" shall mean (a) any Affiliate of the Company, (b)
any Initial Purchaser or (c) any Affiliate of any Initial Purchaser (other than
Affiliates of such Initial Purchaser that (i) are acquiring Exchange Notes in
the ordinary course of business and do not have an arrangement with any Person
to distribute Exchange Notes and (ii) may trade such Exchange Notes 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.
"SPECIAL COUNSEL" shall mean Latham & Watkins, special counsel to the
Initial Purchasers, or any other firm acceptable to the Company, acting as
special counsel to the holders of Registrable Notes or Exchange Notes.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"TRUSTEE" shall mean The Bank of New York, its successors and any
successor trustee
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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 Company determines in good faith that the Exchange Offer
shall not be permissible under applicable law or Commission policy, the Company
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 Notes (subject to
Section 2(c)) for a like aggregate principal amount of debt securities of the
Company and are otherwise in all material respects substantially identical to
the Initial Notes (the "EXCHANGE NOTES") (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 Notes by any Restricted Person,
in the manner or manners designated by them which, in any event, is reasonably
acceptable to the Company.
The Company 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 Note is tendered into the Exchange Offer and (B) 30 days from
the date notice is mailed to the holders of Initial Notes (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 Notes (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 Notes 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 Notes tendered by the holders
thereof
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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.
Each holder of Registrable Notes 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, (ii) any Exchange Notes 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 Notes. Upon consummation of an Exchange Offer in accordance with
this Section 2 and compliance with the other provisions of this Section 2, the
Company shall, subject to Sections 2(b) and 2(c), have no further obligation to
register Registrable Notes 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 Notes would not, upon receipt in the Exchange Offer by any
holder of Registrable Notes (other than any Restricted Person and other than any
holder who is not acquiring such Exchange Notes in the ordinary course of
business or who has an arrangement with any person to participate in the
distribution of such Exchange Notes), 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 shall promptly
deliver notice thereof (the "SHELF NOTICE") to the holders of the Registrable
Notes 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 Company shall not have any further
obligation under this Section 2.
(c) In the event that the Company reasonably determines in good faith
that (i) the Exchange Notes 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 Notes by Restricted Persons, then the
Company shall promptly deliver a Shelf Notice to the Restricted Persons who are
holders of Registrable Notes and to the Trustee, and the Company shall
thereafter file an Initial Shelf Registration Statement with respect to any such
Registrable Notes 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 Notes by Restricted Persons if a Shelf Notice is
not
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then otherwise required to be delivered pursuant to Section 2(b); and, PROVIDED,
FURTHER that such Initial Shelf Registration Statement covering Registrable
Notes 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
Notes 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),
the Company shall not have any further obligation under this Section 2 with
respect to the filing of an offer to exchange the Registrable Notes 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 Notes by Restricted Persons); PROVIDED that the
provisions of this Section 2 shall otherwise remain in full force and effect
with respect to Registrable Notes held by any person other than a Restricted
Person.
SECTION 3. SHELF REGISTRATION; REGISTRABLE NOTES. With respect to the
Registrable Notes, if a Shelf Notice is delivered in accordance with Section
2(b) or 2(c) of this Agreement, then the Company shall comply with the following
provisions of this Section 3:
(a) INITIAL SHELF REGISTRATION. The Company 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 Notes (or, if a Shelf Notice is
delivered solely pursuant to Section 2(c), all of the Registrable Notes held by
any Restricted Persons) (the "INITIAL SHELF REGISTRATION STATEMENT"); PROVIDED,
HOWEVER, that no holder shall be entitled to have its Registrable Notes 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 Notes for resale by the holders thereof in the
manner or manners reasonably designated by them (but excluding any Underwritten
Offerings). The Company 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 years after the Closing Date (subject to extension pursuant to the
last paragraph of Section 5 and subject, with respect to Registrable Notes held
by Restricted Persons, to the limitations set forth in Section 2(c)) (such
two-year period, as it may be extended, being the "EFFECTIVE PERIOD"), or such
shorter period ending when (1) all Registrable Notes covered by the Initial
Shelf Registration Statement have been sold or (2) a Subsequent Shelf
Registration Statement covering all of such Registrable Notes remaining unsold
has been declared effective under the Securities Act or (3) all Registrable
Notes may be sold pursuant to subsection (k) of Rule 144.
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Notwithstanding any other provision hereof, the Company 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 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 promptly thereafter complies 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 Notes, 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 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 Notes
pursuant to Rule 415 covering all of such Registrable Notes remaining unsold (a
"SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a Subsequent Shelf Registration
Statement is declared effective, the Company shall use its 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 acknowledges and agrees that the Initial Purchasers
(and any subsequent holders of the Initial Notes) have acquired the Initial
Notes in reliance on the covenant of the Company to use its reasonable best
efforts to (i) cause to become effective on or prior to the Effective Date (A)
the Exchange Offer Registration Statement or (B) an Initial Shelf Registration
Statement, and (ii) maintain the respective effectiveness of such Registration
Statements as described herein. The Company further acknowledges and agrees that
the failure of the Company to fulfill such covenants will have an adverse effect
on the holders of the Initial Notes. Therefore, the Company agrees that from and
after the date on which any Illiquidity Event occurs, additional
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interest (in addition to the interest otherwise payable with respect to the
Registrable Notes) shall accrue with respect to the Initial Notes 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 Notes 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 Notes 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 Notes had been increased by one half of
one percent (0.50%) per annum. Subject to the provisions of this Section 4, the
Company agrees that it shall be liable to the holders of all Initial Notes for
the payment of any and all additional interest on the Initial Notes that shall
accrue pursuant to this Section 4.
Any such additional interest accrued on any such Initial Notes 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 Notes on such record date.
(b) The Company shall promptly notify the holders of the Initial Notes
and the Trustee of the occurrence of any Illiquidity Event of which it has
knowledge.
Notwithstanding the foregoing, the Company 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 Notes 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 Registrable Notes or Exchange Notes pursuant to Sections 2 and 3 hereof,
the Company shall use its reasonable best efforts to effect such registration to
permit the sale of such Registrable Notes or Exchange Notes in accordance with
any permitted intended method or methods of disposition thereof, and pursuant
thereto the Company 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 Company
shall afford any Restricted Person which is a holder of Registrable Notes or
Exchange Notes and the
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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 Notes 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 Notes covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to Section 3
hereof, notify the selling holders of Registrable Notes promptly after the
Company 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 of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes 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 Company 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 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;
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(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 Notes 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 Notes 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 Notes 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 hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of
the selling holders of Registrable Notes and the underwriters, if any, in
connection with the offering and sale of the Registrable Notes covered by such
Prospectus and any amendment or supplement thereto;
(g) prior to any public offering of Registrable Notes, register or
qualify, or cooperate with the selling holders of Registrable Notes, 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 Notes 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 Notes are
offered other than through an Underwritten Offering, the Company 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 Notes covered by the applicable
Registration Statement; provided, however, that the Company 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 Notes to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes 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 Notes to be in such authorized
denominations and registered
12
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 Notes, 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 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 purchase, or offer to sell or
purchase, any securities of the Company, until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) use its reasonable best efforts to cause the Registrable Notes
covered by the Registration Statement to continue to be rated by the rating
agencies that initially rated the Initial Notes 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 to maintain the rating of such Registrable Notes at the rating given the
Initial Notes);
(k) prior to the effective date of the first Registration Statement
relating to the Registrable Notes or the Exchange Notes, 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 Notes or Exchange Notes
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 Notes;
(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 Notes 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
(collectively, the "RECORDS"), and cause the officers, directors and employees
of the Company 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, in good faith, as confidential at
13
the time of delivery of such information shall be kept confidential by such
Inspector (other than as to holders of Registrable Notes) and by any holders of
Registrable Notes 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, 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 Notes
in violation of this Section 5(m) or (iv) such information is approved for
release by the Company, in writing;
(n) use its best efforts to cause the Indenture or the trust indenture
provided for in Section 2, as the case may be, to be qualified under the TIA not
later than the effective date of such Registration Statement; and, in connection
therewith, cooperate with the Trustee under the Indenture and the holders of the
Registrable Notes 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 Notes 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
Notes under this Section 5 in connection with a Shelf Registration Statement.
Without limiting the generality of the foregoing, the Company 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 Company may require each seller of Registrable Notes 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 Notes 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, (ii) the amount of Registrable Notes held by such holder prior to the
Exchange Offer, (iii) the amount of Registrable Notes 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 Notes to be
issued, and (iv) it is acquiring the Exchange Notes in its ordinary course of
business and to
14
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 Notes of any Person who fails to
furnish such information within a reasonable time after receiving such request.
Each holder of Registrable Notes agrees by acquisition of such
Registrable Notes that, upon receipt of any notice from the Company 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 Notes covered by such Registration Statement or Prospectus
until such holder is advised in writing (the "ADVICE") by the Company 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 (at such holder's expense) all copies in its
possession, other than permanent file copies then in such holder's possession,
of the prospectus covering such Registrable Notes current at the time of receipt
of such notice, or certify in writing as to the destruction thereof. In the
event the Company 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 Notes 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 Notes for its own
account in exchange for Registrable Notes 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
Each Initial Purchaser shall notify the Company promptly upon the
completion of the resale of the Resale Securities received by such Initial
Purchaser pursuant to the Exchange Offer.
SECTION 7. REGISTRATION EXPENSES. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4; PROVIDED, HOWEVER, that the Company 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 opts for an Underwritten Offering, the
Company 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 Notes or the Exchange Notes).
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to (A) indemnify and hold harmless each holder
of
15
Registrable Notes (including any Initial Purchaser which holds Registrable
Notes, 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 Notes 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 Company 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 Company
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, to the extent
that a prospectus relating to such Registrable Notes or the Exchange Notes, as
the case may be, was required to be delivered by such holder under the
Securities Act in connection with such sale and any such loss, claim, damage or
liability of such holder results from the fact that 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 Notes or the Exchange Notes, 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 had previously furnished copies thereof to such
holder. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) As a condition to the inclusion of a holder's Registrable Notes in
a Registration Statement, such holder shall agree to (i) indemnify and hold
harmless the Company and each person who controls the Company 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 Notes
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
16
or alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances in which they were made,
not misleading, and (ii) reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; in each and every case under clause (i) and (ii) above to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such Registration Statement or
Prospectus or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with the Holder Information. This indemnity agreement will be
in addition to any liability which any such holder may otherwise have. In no
event shall the liability of any selling holder of Registrable Notes 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 Notes 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 an 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.
17
(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 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 Company 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 Notes be required to contribute any amount which is in
excess of (i) the aggregate principal amount of Initial Notes 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 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, 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 Notes, the Initial Purchasers, the Company 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 Notes of such Registrable Notes.
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 Notes 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,
18
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
SECTION 10. TERMINATION. In the event that no Initial Notes 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 Company to register the
Initial Notes 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 Company neither 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 Notes 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 has obtained the written consent of holders of at
least a majority of the then outstanding aggregate principal amount of the
Registrable Notes (or, after the consummation of any Exchange Offer in
accordance with Section 2, of Exchange Notes); 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 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 Notes 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 Notes
may be given by holders of at least a majority in aggregate principal amount of
the Registrable Notes 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 depart 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
Notes or Exchange Notes 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:
19
(i) if to a holder of Registrable Notes, at the most current
address given by such holder to the Company 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 Notes set forth in the Security Register applicable to such
Registrable Notes; and
(ii) if to the Company, 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 thereto, subsequent holders of Registrable Notes.
(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 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.
20
(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) NOTES HELD BY THE COMPANY, ETC. Whenever the consent or approval of
holders of a specified percentage of principal amount of Registrable Notes is
required hereunder, Registrable Notes held by the Company or any of its
Affiliates (other than subsequent holders of Registrable Notes if such
subsequent holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Notes) shall not be counted in determining whether
such consent or approval was given by the holders of such required percentage.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
EDISON MISSION ENERGY
By: /s/ Kevin M. Smith
----------------------------------
Name: Kevin M. Smith
Title: Sr. Vice President
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date first
above written
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORP.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Jonathan Bram
------------------------------------
Name: Jonathan Bram
Title: Managing Director
22