EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
Dated as of August 24, 2001
by and among
Equistar Chemicals, LP
Equistar Funding Corporation
and
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
As Representatives of the
Several Initial Purchasers
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 24, 2001, by and among Equistar Chemicals, LP, a Delaware
limited partnership (the "Company"), Equistar Funding Corporation, a Delaware
corporation (together with the Company, the "Issuers"), and Credit Suisse First
Boston Corporation and Salomon Smith Barney Inc., as representatives of the
several initial purchasers named in the Purchase Agreement (as defined below)
(each an "Initial Purchaser" and, collectively, the "Initial Purchasers"), each
of whom has agreed to purchase the Issuers' 10.125% Senior Notes due 2008
(together with any Additional Dividend Notes (as defined in the Indenture
referred to below) that may be issued in respect thereof, the "Initial Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August 16,
2001, (the "Purchase Agreement"), by and among the Issuers and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Initial
Notes, the Issuers have agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 3 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture relating to the Notes among the
Issuers and The Bank of New York, as trustee (the "Indenture").
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to Exchange Notes
to be issued in the Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to Section
3(b) hereof and (c) the delivery by the Issuers to the Trustee of Exchange Notes
in the same aggregate principal amount as the aggregate principal amount of
Initial Notes validly tendered and not withdrawn by Holders thereof pursuant to
the applicable Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The Issuers' 10.125% Senior Notes due 2008 to be issued
pursuant to the Indenture (i) in the Exchange Offer or (ii) as contemplated by
Section 6(b) hereof. References to Exchange Notes received by a Broker-Dealer
from the Issuers pursuant to the Exchange Offer shall also refer to any
Additional Dividend Notes that are received by such Broker-Dealer from the
Issuers prior to such Broker-Dealer's sale of the Exchange Notes in respect of
which such Additional Dividend Notes were issued.
Exchange Offer: The exchange and issuance by the Issuers of a principal
amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Initial Notes that are validly tendered and not withdrawn by Holders in
connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer for the Initial Notes, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Majority Holders: As defined in Section 6(c)(xi) hereof.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference into such
Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
Suspension Period: As defined in Section 4(c) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in
effect on the Closing Date.
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Transfer Restricted Securities: (I) Each Initial Note, until the earliest
to occur of (a) the date on which such Initial Note is exchanged in an Exchange
Offer for an Exchange Note and entitled to be resold to the public without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Initial Note has been disposed of in accordance with a Shelf
Registration Statement (and, if an Exchange Offer has been Consummated prior to
such purchase, purchasers thereof have been issued Exchange Notes), or (c) the
date on which such Initial Note is distributed to the public pursuant to Rule
144 under the Act (and, if an Exchange Offer has been Consummated prior to such
purchase, purchasers thereof have been issued Exchange Notes) or is saleable
pursuant to Rule 144(k) under the Act and (II) each Exchange Note issued to a
Broker-Dealer in an Exchange Offer until such Exchange Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including the delivery of the Prospectus
contained therein).
Section 2. Holders. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a "Holder") whenever such Person owns Transfer
Restricted Securities.
Section 3. Registered Exchange Offers.
(a) Unless an Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
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with), the Issuers shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing Date, but
in no event later than 90 days after the Closing Date (such 90th day being the
"Filing Deadline"), (ii) use their best efforts to cause the Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 210 days after the Closing Date (such 210th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to the Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to the Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of the
Exchange Offer Registration Statement and within the time period contemplated by
Section 3(b) hereof, commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (i) registration of the
Exchange Notes to be offered in exchange for the Initial Notes that are Transfer
Restricted Securities and (ii) resales of Exchange Notes by Broker-Dealers that
tendered into the Exchange Offer Initial Notes that such Broker-Dealer acquired
for its own account as a result of market making activities or other trading
activities (other than Initial Notes acquired directly from any Issuer or any of
their Affiliates) as contemplated by Section 3(c) below.
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(b) The Issuers shall use their respective best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate such
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. The Issuers shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Exchange Notes shall be included in the Exchange Offer Registration
Statement. The Issuers
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shall use their respective best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
business days thereafter (such 30th business day being the "Consummation
Deadline").
(c) The Issuers shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Issuers or any Affiliate of either Issuer), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Issuers shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the Prospectus contained in the Exchange
Offer Registration Statement is available for sales of Exchange Notes by Broker-
Dealers, the Issuers agree to use their respective best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(a) and 6(c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of 180 days from the Consummation Deadline or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto or are no
longer outstanding. The Issuers shall provide sufficient copies of the latest
version of such Prospectus to such Broker-Dealers, promptly upon request, and in
no event later than one day after such request, at any time during such period.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) (A) the Exchange Offer is not permitted by
applicable law or Commission policy or (B) an Exchange Offer is not permitted
with respect to Initial Notes that are Additional Dividend Notes (in each case
after the Issuers have complied with the procedures set forth in Section 6(a)(i)
below) or (ii) if any Holder of Transfer Restricted Securities shall notify the
Issuers within 20 Business Days following the Consummation of the Exchange Offer
that (A) such Holder was prohibited by law or Commission policy from
participating in the applicable Exchange Offer or (B) such Holder may not resell
the Exchange Notes acquired by it in the applicable Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales by
such Holder or (C) such Holder is a Broker-Dealer
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and holds Initial Notes acquired directly from the Issuers or any of their
Affiliates, then the Issuers shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Issuers determine that the Exchange Offer
Registration Statement cannot be filed as a result of clause 4(a)(i) above
and (ii) the date on which the Issuers receive the notice specified in
clause 4(a)(ii) above, (such earlier date, the "Filing Deadline"), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "Shelf
Registration Statement")), relating to (1) all Transfer Restricted
Securities in the case of clause 4(a)(i)(A) above or all Initial Notes that
are Additional Dividend Notes in the case of clause 4(a)(i)(B) above or (2)
the Transfer Restricted Securities specified in any notice in the case of
clause 4(a)(ii), and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 60 days after the
Filing Deadline for the Shelf Registration Statement (such 60th day the
"Effectiveness Deadline").
If, after the Issuers have filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Issuers are required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law or is not permitted
in respect of Additional Dividend Notes (i.e., clause 4(a)(i) above), then the
filing of the Exchange Offer Registration Statement shall be deemed to satisfy
the requirements of clause (x) above; provided that, in such event, the Issuers
shall remain obligated to meet the Effectiveness Deadline set forth in clause
(y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Issuers shall
use their respective best efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended and
current as required by and subject to the provisions of Sections 6(b) and 6(c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years (as extended pursuant to Section 6(d))
following the Closing Date, or such shorter period as will terminate on the
earlier of the date when all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold pursuant thereto, no longer
constitute Transfer Restricted Securities or are no longer outstanding.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuers in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall
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have provided all such information which is required by rules of the Commission
to be included in the Shelf Registration Statement prior to the time it is
declared effective. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
(c) Suspension. The Issuers will have the ability to suspend the Shelf
Registration Statement (a "Suspension Period"), if the Issuers determine, in
their reasonable best judgment, upon written advice of counsel, that the
continued effectiveness and use of the Shelf Registration Statement would
require the disclosure of confidential information or interfere with any
financing, acquisition, reorganization or other material transaction involving
the Company or any of its subsidiaries. A Suspension Period shall commence on
and include the date that the Issuers give notice that the Shelf Registration
Statement is no longer effective or the Prospectus included therein is no longer
usable for offers and sales of Transfer Restricted Securities covered by such
Registration Statement and continue until holders of such Transfer Restricted
Securities either receive the copies of the supplemented or amended prospectus
contemplated by Section 6(c) hereof or are advised in writing by the Issuers
that use of the Prospectus may be resumed. Any such suspensions may not exceed
(i) 60 days in the aggregate in the first twelve month period after the Closing
Date, (ii) 60 days in the aggregate in the twelve month period immediately
thereafter and (iii) 90 days in the aggregate during any subsequent twelve month
period.
Section 5. Liquidated Damages.
If (a) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (b) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (c) the Exchange Offer has not
been Consummated on or prior to the Consummation Deadline or (d) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable
(provided that the unavailability of a Registration Statement for the use of a
Holder as a result of such Holder's failure to provide information pursuant to
Section 4(b) or make representations required by Section 6(a)(ii) shall not be
deemed to make the Registration Statement fail to be usable) for its intended
purpose (except as provided in, and during the time periods specified in,
Section 4(c)) without being succeeded within five days by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective within 10 days of the filing of such post-effective
amendment (each such event referred to in clauses (a) through (d), a
"Registration Default"), then each Issuer hereby jointly and severally agrees to
pay to each Holder of Transfer Restricted Securities liquidated damages in an
amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.25 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Issuers shall in no
event be required to pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary set forth
herein, (i) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration
7
Statement), in the case of clause (b) above, (iii) upon Consummation of the
Exchange Offer, in the case of clause (c) above, or (iv) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of clause (d) above, the liquidated damages
payable with respect to the Transfer Restricted Securities as a result of such
clause (a), (b), (c) or (d), as applicable, shall cease to accrue.
All accrued liquidated damages shall be paid to the record Holders entitled
thereto in the manner provided for the payment of interest in the Indenture on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Issuers to pay liquidated damages with respect to securities shall survive until
such time as such obligations with respect to such securities shall have been
satisfied in full.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Issuers shall (x) comply with all applicable provisions of Section
6(c) below, (y) use their respective best efforts to effect such exchange and to
permit the resale of Exchange Notes by Broker-Dealers that tendered in the
Exchange Offer Initial Notes that such Broker-Dealer acquired for its own
account as a result of its market making activities or other trading activities
(other than Initial Notes acquired directly from any Issuers or any of their
Affiliates) being sold in accordance with the intended method or methods of
distribution thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Issuers raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law (or, in the reasonable opinion of such counsel,
there is a substantial question as to whether an Exchange Offer is
permitted with respect to Additional Dividend Notes), the Issuers hereby
agree to seek a no-action letter or other favorable decision from the
Commission allowing the Issuers to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Issuers hereby agree to pursue the
issuance of such a decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a change of
Commission policy. In connection with the foregoing, the Issuers hereby
agree to take all such other actions (other than such actions as may be
commercially unreasonable) as may be requested by the Commission or
otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic conferences
with the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
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(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
request of the Issuers, prior to the Consummation of the Exchange Offer, a
written representation to the Issuers (which may be contained in the letter
of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) such Holder is not an Affiliate of either Issuer or
a Broker-Dealer tendering Initial Notes acquired directly from either
Issuer for its own account, (B) such Holder will have no arrangement or
understanding with any person to participate in the distribution of the
Initial Notes or the Exchange Notes within the meaning of the Act, (C) if
the Holder is not a Broker-Dealer or is a Broker-Dealer but will not
receive Exchange Notes for its own account in exchange for Initial Notes,
neither the Holder nor any such other Person is engaged in or intends to
participate in a distribution of the Exchange Notes, and (D) any Exchange
Notes received by such Holder will be acquired in the ordinary course of
its business. If the Holder is a Broker-Dealer that will receive Exchange
Notes for its own account in exchange for Initial Notes, it will represent
that the Initial Notes to be exchanged for the Exchange Notes were acquired
by it as a result of market-making activities or other trading activities,
and will acknowledge that it will deliver a prospectus meeting the
requirements of the Act in connection with any resale of such Exchange
Notes. It is understood that, by acknowledging that it will deliver, and by
delivering, a prospectus meeting the requirements of the Act in connection
with any resale of such Exchange Notes, the Holder is not admitting that it
is an "underwriter" within the meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall provide a supplemental letter to the
Commission (A) stating that the Issuers are registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
letter obtained pursuant to Section 6(a)(i) above, (B) including a
representation that neither Issuer has entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of each Issuer's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to Section 6(a)(i) above,
if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers shall
(i) comply with all the provisions of Section 6(c) below and use
their respective reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Issuers pursuant to Section
4(b) hereof), and pursuant thereto the Issuers will prepare and file
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with the Commission a Registration Statement relating to the registration
on any appropriate form under the Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Initial
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Issuers for cancellation; the
Issuers shall register Exchange Notes on the Shelf Registration Statement
for this purpose and issue the Exchange Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as such
purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Issuers shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Issuers shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use their respective reasonable best
efforts to cause such amendment to be declared effective as soon as
practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, promptly
and, if requested by such Holder, confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
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Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, and (D) of the existence
of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Issuers shall use their respective
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 4(c), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders in connection with such
sale, if any, for a period of at least five Business Days, and the Issuers
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Holders shall reasonably object within five Business Days after the receipt
thereof. A Holder shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document
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to the Initial Purchasers and in the case of a Shelf Registration
Statement, each Holder of securities covered thereby, in connection with
such exchange or sale, if any, make the Company's representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as the Initial Purchasers or such Holders may reasonably request;
(vii) make available, at reasonable times, for inspection by the
Initial Purchasers and, in the case of a Shelf Registration Statement, each
Holder of securities covered thereby, and the designated counsel or any
accountant retained by such Holders, all financial and other records,
pertinent corporate documents of each Issuer and cause their officers,
directors and employees to supply all information reasonably requested by
any such Initial Purchaser, Holder, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness; provided,
however, that such persons shall first agree in writing with the Issuers
that any information that is reasonably and in good faith designated by the
Issuers in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the
filing of such Registration Statement or the use of any Prospectus), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a
source other than the Issuers or their subsidiaries and such source is not
known, after due inquiry, by such person to be bound by a confidentiality
agreement; provided further, that the foregoing investigation shall be
coordinated on behalf of such persons by one representative designated by
and on behalf of such persons and any such confidential information shall
be available from such representative to such persons so long as any person
agrees to be bound by such confidentiality agreement;
(viii) if requested by the Initial Purchasers and, in the case of a
Shelf Registration Statement, any Holders of securities covered thereby, in
connection with such exchange or sale, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such Persons may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Issuers are notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) furnish to the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, in
connection with such exchange or sale, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
12
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuers
hereby consent to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) in the case of a Shelf Registration Statement, enter into such
agreements (including underwriting agreements) and, in the case of any
Registration Statement contemplated by this Agreement, make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Initial Purchaser or, in the case of a Shelf Registration Statement,
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities covered thereby (the "Majority Holders") in
connection with any sale or resale pursuant to any applicable Registration
Statement. In such connection, the Issuers shall:
(xii) upon request of the Majority Holders (in the case of a Shelf
Registration Statement) or any Initial Purchaser (in the case of an
Exchange Offer), furnish (or in the case of Sections 6(c)(xi)(A)(2) and
6(c)(xi)(A)(3), use their best efforts to cause to be furnished) to each
Holder upon Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:
(A) a certificate, dated such date, signed on behalf of
each Issuer by (x) the President or any Vice President and (y) a
principal financial or accounting officer of such Issuer, confirming,
as of the date thereof, the matters set forth in Sections 6(b) and
6(f) of the Purchase Agreement and such other similar matters as may
be reasonably requested;
(B) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Issuers covering
matters similar to those set forth in paragraphs (c) and (d) of
Section 6 of the Purchase Agreement and such other matter as may be
reasonably requested, and in any event including a statement to the
effect that such counsel has participated in conferences with officers
and other representatives of the Issuers and representatives of the
independent public accountants for the Issuers and have considered the
matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate upon the
statements of officers and other representatives of the Issuers and
without independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration Statement, as of
the date of
13
Consummation of the Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration
Statement as of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules and other
financial and statistical data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(1) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from the Issuers' independent accountants, in
the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant
to Section 6(a) of the Purchase Agreement; and
(2) deliver such other documents and certificates as
may be reasonably requested by any of the Initial Purchasers
or, in the case of any Shelf Registration Statement, the
Majority Holders, to evidence compliance with the matters
covered in Section 6(c)(xi)(A) above and with any customary
conditions contained in any agreement entered into by the
Issuers pursuant to this Section 6(c)(xi);
(xiii) prior to any public offering of Transfer Restricted
Securities, cooperate with the Holders named in the applicable Registration
Statement (or any prospectus supplement thereto) and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as any such Holders may request and do any and all other acts
or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither Issuer
shall be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(A) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and, subject to the provisions of the
Indenture regarding
14
global securities, to register such Transfer Restricted Securities in
such denominations and such names as the selling Holders may request
at least two Business Days prior to such sale of Transfer Restricted
Securities;
(B) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
Section 6(c)(xii) above;
(C) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the
Depository Trust Company;
(D) otherwise use their respective best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(E) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate
with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indentures to be so qualified in
accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indentures to
be so qualified in a timely manner; and
(F) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(xiv) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice referred
to in Section 4(c) or Section 6(c)(iii)(C) or any notice from the Issuers
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof (in each case, a "Suspension Notice"), such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until (i) such Holder has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Holder is advised in writing by the Issuers that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are
15
incorporated by reference in the Prospectus (in each case, the
"Recommencement Date"). Each Holder receiving a Suspension Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been
replaced by the Issuers with more recently dated Prospectuses or (ii)
deliver to the Issuers (at the Issuers' expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time
of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
No holder may participate in any underwritten registration under the
Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
The Issuers shall ensure that any Additional Dividend Notes issued with
respect to securities that are not Transfer Restricted Securities are also not
Transfer Restricted Securities when issued, whether through the maintenance of
an effective Shelf Registration Statement or otherwise.
Section 7. Registration Expenses.
(a) All expenses incident to the Issuers' performance of or compliance
with this Agreement will be borne by the Issuers, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Exchange Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Issuers and, in accordance with Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Exchange Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Issuers
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuers will, in any event, bear their internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by either
Issuer.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Initial Purchasers and the Holders of
16
Transfer Restricted Securities who are tendering Initial Notes in the Exchange
Offer and/or selling or reselling Initial Notes or Exchange Notes pursuant to
the "Plan of Distribution" contained in the Exchange Offer Registration
Statement or the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, who shall be Davis Polk &
Wardwell, unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
Section 8. Indemnification.
(a) Each Issuer agrees, jointly and severally, to indemnify and hold
harmless each Holder, its directors, officers and each Person, if any, who
controls such Holder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by either Issuer to any Holder or any prospective purchaser of Exchange
Notes or registered Initial Notes, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon information
relating to any of the Holders furnished in writing to the Issuers by any of the
Holders; provided, however, that the foregoing indemnity agreement with respect
to the preliminary prospectus shall not inure to the benefit of any Holder who
failed to deliver the Prospectus, as then amended or supplemented (so long as
the Prospectus and any such amendment or supplement was provided by the Issuers
to the Holders in the requisite quantity and on a timely basis to permit proper
delivery) to the person asserting any losses, claims, damages, liabilities or
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in the Prospectus, as so amended or supplemented.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless each Issuer, and their respective
directors and officers, and each person, if any, who controls each Issuer
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
to the same extent as the foregoing indemnity from the Issuers set forth in
Section 8(a) above, but only with reference to information relating to such
Holder furnished in writing to the Issuers by such Holder expressly for use in
any Registration Statement, preliminary prospectus or Prospectus (or any
amendment or supplement thereto). In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for any
amount in excess of the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds the amount of any damages that such Holder, its directors, officers or
any Person who controls such Holder
17
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than sixty days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and more than twenty days after the indemnifying party shall have
received notice of the proposed settlement and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
18
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers from their
sale of Transfer Restricted Securities, on the one hand, and the Holders from
their sale of Transfer Restricted Securities, on the other hand, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Issuers, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Issuers, on the one hand, and of the Holder, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers, on the
one hand, or by the Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Each Issuer and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
Section 9. Rule 144A and Rule 144. Each Issuer agrees with each Holder of
Transfer Restricted Securities, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Issuers (i) are
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such
19
Transfer Restricted Securities pursuant to Rule 144A, and (ii) are subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in
a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
Section 10. Miscellaneous.
(a) Remedies. The Issuers acknowledge and agree that any failure by them
to comply with their respective obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuers' obligations under Sections 3 and 4
hereof. The Issuers further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither Issuer will, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Neither Issuer has previously
entered into any agreement which remains in effect granting any registration
rights with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of either Issuers' securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this clause 10(c)(i), the Issuers have obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Issuers have obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Issuers or their Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
20
(i) if to a Holder, at the address set forth on the records of the
Registrar, with a copy to the Registrar; and
(ii) if to the Issuers:
Equistar Chemicals, LP
One Houston Center, Suite 700
1221 McKinney Street
Houston, Texas 77010
Telecopier No.: 713-309-2143
Attention: General Counsel
With a copy to:
Baker & Botts
710 Louisiana
Houston, Texas 77002
Telecopier No.: 713-229-1522
Attention: Stephen Massad, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
21
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EQUISTAR CHEMICALS, LP
By: /s/ GERALD A. O'BRIEN
----------------------------
Name: Gerald A. O'Brien
Title: Vice President
EQUISTAR FUNDING CORPORATION
By: /s/ GERALD A. O'BRIEN
----------------------------
Name: Gerald A. O'Brien
Title: Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION
SALOMON SMITH BARNEY INC.
Acting on behalf of themselves
and as the Representatives of
the several Initial Purchasers
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ DAVID P. FARIS
-----------------------
Name: David P. Faris
Title: Director
23