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EXHIBIT 4.4
ORION POWER HOLDINGS, INC.
12% SENIOR NOTES DUE 2010
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
April 27, 2000
Goldman, Sachs & Co.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Paribas Corporation
FleetBoston Robertson Stephens Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Orion Power Holdings, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 12% Senior Notes due
2010. As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company agrees with the Purchasers for the benefit of holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered with
the Exchange Act.
"Closing Date" shall mean the date on which the Securities are initially
issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Conduct Rules" shall have the meaning assigned thereto in Section
3(d)(xix) hereof.
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"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective; (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective; and (iii) a Market Making Shelf
Registration, shall mean the time and date as of which the Commission
declares the Market Making Shelf Registration Statement effective or as
of which the Market Making Shelf Registration Statement otherwise becomes
effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
"Guarantor" shall have the meaning assigned thereto in the Indenture.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture, dated as of April 27, 2000,
between the Company and Wilmington Trust Company, as Trustee, as the same
shall be amended from time to time.
"Market Making Shelf Registration" shall have the meaning assigned
thereto in Section 2(c) hereof.
"Market Making Shelf Registration Statement" shall have the meaning
assigned thereto in Section 2(c) hereof.
"NASD" shall have the meaning assigned thereto in Section 3(d)(xix)
hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit
A hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
April 20, 2000, between the Purchasers and the Company relating to the
Securities.
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"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for
use in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until resale of
such Registrable Security has been effected within the period referred to
in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security
has been sold or otherwise transferred by the holder thereof pursuant to
and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule
144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(d) hereof.
"Registration Default Period" shall have the meaning assigned thereto in
Section 2(d) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who a cquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the 12% Senior Notes due 2010 of
the Company to be issued and sold to the Purchasers, and securities issued
in exchange therefor or in lieu thereof pursuant to the Indenture. Each
Security is entitled to the benefit of any guarantee provided for in the
Indenture (the "Guarantee") and, unless the context otherwise requires,
any reference herein to a "Security," an "Exchange Security" or a
"Registrable Security" shall include a reference to the related Guarantee.
The term "Secondary Offer Registration Statement" shall mean (i) the
Shelf Registration Statement required to be filed by the Company pursuant
to Section 2(b) hereof and/or (ii) the Market Making Shelf Registration
Statement required to be filed by the Company
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pursuant to Section 2(c) hereof, in each case, as applicable. As used
herein, references to a Secondary Offer Registration Statement in the
singular shall, if applicable, be deemed to be in the plural.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(d) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be,
of this Exchange and Registration Rights Agreement, and the words
"herein," "hereof" and "hereunder" and other words of similar import refer
to this Exchange and Registration Rights Agreement as a whole and not to
any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to file
under the Securities Act no later than March 15, 2001 a registration
statement relating to an offer to exchange (such registration statement,
the "Exchange Registration Statement", and such offer, the "Exchange
Offer") any and all of the Securities for a like aggregate principal
amount of debt securities issued by the Company and guaranteed by the
Guarantors, if any, which debt securities and guarantee, if any, are
substantially identical to the Securities and the related Guarantee
(if any), respectively (and are entitled to the benefits of a trust
indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(d) below
(such new debt securities hereinafter called "Exchange Securities"). The
Company agrees to use its best efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as
practicable thereafter, but no later than July 15, 2001. The Exchange
Offer will be registered under the Securities Act on the appropriate form
and will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Company further agrees to use its best efforts
to commence and complete the Exchange Offer promptly, but no later than 30
business days after such Exchange Offer Registration Statement has become
effective, hold the Exchange Offer open for at least 30 days and issue
Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the Exchange
Offer. The Exchange Offer will be deemed to have been "completed" only if
the debt securities and related guarantee, if any, received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without
material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company
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having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that
is at least 30 days following the commencement of the Exchange Offer. The
Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in any resales by any holder of Exchange Securities
that is a broker-dealer and (y) to keep such Exchange Registration
Statement effective for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 180th day after the Exchange Offer
has been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and
(e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities or the related guarantee, if any, received by holders other
than Restricted Holders in the Exchange Offer for Registrable Securities
are not or would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the Exchange Offer has
not been completed by July 15, 2001 or (iii) any holder of Securities
notifies the Company prior to the 20th day following consummation of the
Exchange Offer that, (A) based on the advice of counsel, it is prohibited
by law or Commission policy from participating in the Exchange Offer, (B)
based on the advice of counsel, it may not resell the Exchange Securities
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales or (C) that it
is a broker-dealer and own Securities acquired directly from the Company
or an affiliate of the Company, the Company shall, in lieu of (or, in the
case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act as soon as
practicable, but no later than the later of 30 days after the time such
obligation to file arises (or 60 days with respect to a notice pursuant
to Section 3(b)(iii)(c)), a "shelf" registration statement providing for
the registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Registrable Securities, pursuant to Rule 415
or any similar rule that may be adopted by the Commission (such filing,
the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company agrees to use all commercially
reasonable efforts (x) to cause the Shelf Registration Statement to
become or be declared effective no later than 90 days (or 150 days with
respect to a notice pursuant to Section 3(b)(iii) (c)) after the
obligation to file such Shelf Registration Statement arises and to keep
such Shelf Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities outstanding,
provided, however, that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective
Time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to
use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf Registration
Statement, provided, however, that nothing in this clause (y) shall
relieve any such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(d)
(iii) hereof. The Company further agrees to supplement or make amendments
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to the Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and the
Company agrees to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly following
its filing with the Commission.
(c) The Company shall file under the Securities Act, on the date
that the Exchange Registration Statement (or in lieu thereof, the Shelf
Registration Statement) is filed with the Commission, a "shelf"
registration statement (which may be the Exchange Registration Statement
or the Shelf Registration Statement if permitted by the rules and
regulations of the Commission) pursuant to Rule 415 under the Securities
Act or any similar rule that may be adopted by the Commission providing
for the registration of, and the sale on a continuous or delayed basis
in secondary transactions by Goldman, Sachs & Co. of, Securities (in the
event of a Shelf Registration) or Exchange Securities (in the event of
an Exchange Offer) (such filing, the "Market Marking Shelf
Registration", and such registration statement, the "Market Making Shelf
Registration Statement"). The Company agrees to use its reasonable best
efforts to cause the Market Making Shelf Registration Statement to
become or be declared effective on or prior to (i) the date the Exchange
Offer is completed pursuant to Section 2(a) above or (ii) the date the
Shelf Registration becomes or is declared effective pursuant to Section
2(b) above, and to keep such Market Making Shelf Registration Statement
continuously effective for so long as Goldman, Sachs & Co. may be
required to deliver a prospectus in connection with transactions in the
Securities or the Exchange Securities, as the case may be. In the event
that Goldman, Sachs & Co. holds Securities at the time an Exchange Offer
is to be conducted under Section 2(a) above, the Company agrees that the
Market Making Shelf Registration shall provide for the resale by
Goldman, Sachs & Co. of such Securities and shall be kept continuously
effective for so long as Goldman, Sachs & Co. may be required to deliver
a prospectus in connection with the sale of such Securities. The Company
further agrees to supplement or make amendments to the Market Making
Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Market Making Shelf Registration Statement or by
the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to Goldman, Sachs & Co.
copies of any such supplement or amendment prior to its being used or
promptly following its filing with the Commission.
Notwithstanding the foregoing, the Company may suspend the offering and
sale under the Market Making Shelf Registration Statement for a period
or periods the Board of Directors of the Company reasonably determines
to be necessary, but in any event not to exceed 120 days in each year
during which the Market Making Shelf Registration Statement is required
to be effective and usable hereunder (measured from the Effective Time
of the Market Making Shelf Registration Statement to successive
anniversaries thereof) if (A)(i) the Board of Directors of the Company
determines in good faith that such action is in the best interests of
the Company, or (ii) the Market Making Shelf Registration Statement,
prospectus or amendment or supplement thereto contains an untrue
statement of a material fact or omits 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, and (B) the
Company notifies Goldman, Sachs & Co. within five days after such Board
of Directors makes the relevant determination set forth in clause (A).
(d) In the event that (i) the Company has not filed the Exchange
Registration Statement, Shelf Registration Statement or the Market
Making Shelf Registration Statement on or
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before the date on which such registration statement is required to be
filed pursuant to Section 2(a), 2(b) or 2(c) hereof, respectively, or
(ii) such Exchange Registration Statement, Shelf Registration Statement
or Market Making Shelf Registration Statement has not become effective
or been declared effective by the Commission on or before the date on
which such registration statement is required to become or be declared
effective pursuant to Section 2(a), 2(b) or 2(c) hereof, respectively,
or (iii) the Exchange Offer has not been completed within 30 business
days after the initial effective date of the Exchange Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Exchange Registration Statement, Shelf
Registration Statement or Market Making Shelf Registration Statement
required by Section 2(a), 2(b) or 2(c) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without
being succeeded immediately by an additional registration statement
filed and declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration
Default Period"), then, as liquidated damages for such Registration
Default, subject to the provisions of Section 9(b), special interest
("Special Interest"), in addition to the Base Interest, shall accrue in
an amount equal to $.05 per week per $1,000 principal amount of
Securities with respect to the first 90 days of the Registration Default
Period. The amount of Special Interest will increase by an additional
$.05 per week per $1,000 principal amount of Securities with respect to
each additional 90-day period of the Registration Default Period until
all the Registration Defaults have been cured, up to a maximum amount of
Special Interest for all Registration Defaults of $.50 per week per
$1,000 principal amount of Securities. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Registration
Statement, the Shelf Registration Statement and/or the Market Making
Shelf Registration Statement, in the case of (i) above, (2) upon the
effectiveness of the Exchange Registration Statement, the Shelf
Registration Statement and/or the Market Making Shelf Registration
Statement, in the case of (ii) above, (3) upon completion of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment or an additional registration statement that
causes the Exchange Registration Statement, the Shelf Registration
Statement and/or the Market Making Shelf Registration Statement to again
be declared effective or made usable in the case of (iv) above, the
Special Interest payable as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease accruing and the interest rate shall
return to the Base Interest.
(e) The Company shall take, and shall cause the Guarantors, if
any, to take all actions necessary or advisable to be taken by it to
ensure that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register
the Guarantee, if any, under the registration statement contemplated in
Section 2(a), 2(b) or 2(c) hereof, as applicable.
(f) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time.
3. Registration Procedures.
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If the Company files a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c), the following provisions
shall apply:
(a) At or before the Effective Time of the Exchange Offer, the Shelf
Registration or the Market Making Shelf Registration, whichever may be first,
the Company shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission no later than March
15, 2001 an Exchange Registration Statement on any form which
may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to cause
such Exchange Registration Statement to become effective as soon
as practicable thereafter, but no later than July 15, 2001;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity
in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such Exchange
Registration Statement, and confirm such advice in writing, (A)
when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Exchange Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation
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or threatening of any proceeding for such purpose, or (F) at any
time during the Resale Period when a prospectus is required to
be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without delay
prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that neither the Company nor the
Guarantors, if any, shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the Effective Time of the Exchange Registration
Statement;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an
earnings statement of the Company and its subsidiaries complying
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with Section 11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, and the Market Making Shelf Registration, as applicable, the
Company shall use its reasonable best efforts to cause the applicable Secondary
Offer Registration Statement to permit the disposition of Registrable Securities
by the holders thereof, in the case of the Shelf Registration, and of Securities
or Exchange Securities by Goldman, Sachs & Co., in the case of a Market Making
Shelf Registration (subject to the second paragraph of Section 2(c) hereof), in
accordance with the intended method or methods of disposition thereof provided
for in the applicable Secondary Offer Registration Statement. In connection
therewith, the Company shall, as soon as practicable (or as otherwise
specified):
(i) (A) prepare and file with the Commission within the time
periods specified in Section 2(b) or Section 2(c) hereof, as
applicable, a Secondary Offer Registration Statement on any form
which may be utilized by the Company which shall (x) register all
of the Registrable Securities, in the case of a Shelf
Registration, and the Securities and Exchange Securities, in the
case of a Market Making Shelf Registration, for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from
time to time, may be Electing Holders, in the case of a Shelf
Registration, or Goldman, Sachs & Co., in the case of a Market
Making Shelf Registration, and (y) be, in the case of a Market
Making Shelf Registration, in the form approved by Goldman, Sachs
& Co., and (B) use its best efforts to cause such Secondary Offer
Registration Statement to become effective as soon as practicable
after such filing, but in any case within the time periods
specified in Section 2(b) or Section 2(c) hereof, as applicable;
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no
holder shall be entitled to use the prospectus forming a part
thereof for resales of Registrable Securities at any time, unless
such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set
forth therein; provided, however, holders of Registrable
Securities shall have at least 28 calendar days from the date on
which the Notice and Questionnaire is first mailed to such holders
to return a completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the Company
shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to
enable such holder to use the prospectus forming a part thereof
for resales of Registrable Securities until such holder has
returned a completed and signed Notice and Questionnaire to the
Company;
(iv) as soon as practicable (A) prepare and file with the
Commission such amendments and supplements to the Secondary Offer
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Secondary Offer Registration Statement for the period
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specified in Section 2(b) or Section 2(c) hereof, as applicable,
and as may be required by the applicable rules and regulations
of the Commission and the instructions applicable to the form of
such Secondary Offer Registration Statement and, in the case of
an amendment to or supplement of the Market Making Shelf
Registration Statement, each in a form approved by Goldman,
Sachs & Co., and (B) furnish to the Electing Holders, in the
case of a Shelf Registration, and Goldman, Sachs & Co., in the
case of a Market Making Shelf Registration, copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities,
Securities or Exchange Securities, as applicable covered by such
Secondary Offer Registration Statement in accordance with the
intended methods of disposition provided for therein by the
Electing Holders, in the case of a Shelf Registration, or Goldman,
Sachs & Co., in the case of a Market Making Shelf Registration;
(vi) provide (A) with respect to a Shelf Registration, the
Electing Holders; (B) with respect to a market making Shelf
Registration, Goldman, Sachs & Co., and its counsel; and (c) in
either case, the underwriters (which term, for purposes of this
Exchange and Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, the sales or placement
agent, if any, therefor, and one counsel (and any local counsel)
for such underwriters or agent, the opportunity to participate in
the preparation of such Secondary Offer Registration Statement,
each prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Secondary Offer Registration Statement, and throughout the period
specified in Section 2(b) or Section 2(c) hereof, as applicable,
make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by
the persons referred to in Section 3(d)(vi) who shall certify to
the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration, or the
Securities or Exchange Securities pursuant to the Market Making
Shelf Registration, as applicable, such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall
be reasonably necessary, in the judgment of the respective counsel
referred to in such Section 3(d)(vi), to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company as
being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such Secondary Offer Registration Statement or
otherwise), or (B) such person shall be required so to disclose
such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written
notice of such requirement), or (C) such information is required
to be set forth in such Secondary Offer Registration Statement or
the prospectus included therein or in an amendment to such
Secondary Offer Registration Statement or an amend-
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ment or supplement to such prospectus in order that such
Secondary Offer Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
(viii) promptly notify each of the Electing Holders or
Goldman, Sachs & Co., as applicable, any sales or placement agent
therefor and any underwriter thereof (which notification may be
made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in
writing, (A) when such Secondary Offer Registration Statement or
the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Secondary Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B)
of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Secondary Offer Registration Statement or
prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Secondary Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true
and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Securities or
Exchange Securities, as applicable, for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose, or (F) if at any time when a prospectus is required to be
delivered under the Securities Act, that such Secondary Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Secondary Offer
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent, any Electing Holder
or Goldman, Sachs & Co. promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters,
such agent, such Electing Holder or Goldman, Sachs & Co.
specifies should be included therein relating to the terms of
the sale of such Registrable Securities or the Securities or
Exchange Securities, as applicable, including information with
respect to the principal amount thereof being sold by such
Electing Holder, Goldman, Sachs & Co., or such agent or to any
underwriters, the name and description of such Electing Holder,
a description of Goldman, Sachs & Co., such agent or
underwriter, the offering price of such
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Registrable Securities, Securities or Exchange Securities, as
applicable, and any discount, commission or other compensation
payable in respect thereof and the purchase price being paid
therefor by such underwriters and with respect to any other terms
of the offering of the Registrable Securities, Securities or
Exchange Securities, as applicable, to be sold by such Electing
Holder, Goldman, Sachs & Co. or such agent or to such
underwriters, as applicable; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to Goldman, Sachs & Co. each Electing Holder,
each placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in Section
3(d)(vi) an executed copy (or, in the case of an Electing Holder,
a conformed copy) of such Secondary Offer Registration Statement,
each such amendment and supplement thereto (in each case including
all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated
by reference therein) and such number of copies of such Secondary
Offer Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by Goldman, Sachs & Co., such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Secondary Offer Registration Statement (including each
preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other
documents, as Goldman, Sachs & Co., such Electing Holder, agent,
if any, and underwriter, if any, may reasonably request in order
to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, the Securities or
Exchange Securities owned by Goldman, Sachs & Co., and the
Registrable Securities, Securities, or Exchange Securities offered
or sold by such agent or underwritten by such underwriter, as
applicable, and to permit Goldman, Sachs & Co., such Electing
Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by
Goldman, Sachs & Co. (subject to the second paragraph of Section
2(c) hereof), each such Electing Holder and by any such agent and
underwriter, in each case in the form most recently provided to
such person by the Company, in connection with the offering and
sale of the Registrable Securities, Securities or Exchange
Securities covered by the prospectus (including such preliminary
and summary prospectus) or any supplement or amendment thereto;
(xii) use its best efforts to (A) register or qualify the
Registrable Securities, Securities or Exchange Securities, as
applicable, to be included in such Secondary Offer Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder, Goldman, Sachs & Co. and
each placement or sales agent, if any, therefor and each
underwriter, if any, thereof shall reasonably request, (B) keep
such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b)
above or the period the Market Making Shelf Registration is
required to remain effective under Section 2(c) above, as
applicable, and for so long as may be necessary to enable Goldman,
Sachs & Co., any such Electing Holder,
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agent or underwriter to complete its distribution of Registrable
Securities, Securities or Exchange Securities, as applicable,
pursuant to such Secondary Offer Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, and Goldman,
Sachs & Co., as applicable, such agent, if any, and underwriter,
if any, to consummate the disposition in such jurisdictions of
such Registrable Securities, Securities or Exchange Securities;
provided, however, that neither the Company nor the Guarantors,
if any, shall be required for any such purpose to (1) qualify as
a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(d)(xii), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between
it and its stockholders;
(xiii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state
or local, which may be required of the Company or, with respect to
the Registrable Securities, Securities or Exchange Securities, as
applicable, to effect the Shelf Registration or the Market Making
Shelf Registration, or the offering or sale in connection
therewith or to enable the selling holder or holders or Goldman,
Sachs & Co. to offer, or to consummate the disposition of, their
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xiv) cooperate with the Electing Holders or Goldman, Sachs &
Co. and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities, Securities or Exchange Securities, as
applicable, to be sold, which certificates, if so required by any
securities exchange upon which any Registrable Securities,
Securities or Exchange Securities, as applicable, are listed,
shall be printed, penned, lithographed or engraved, or otherwise
produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable such
Registrable Securities, Securities or Exchange Securities, as
applicable, to be in such denominations and registered in such
names as the managing underwriters may request at least two
business days prior to any sale of the Registrable Securities,
Securities or Exchange Securities, as applicable;
(xv) provide a CUSIP number for all Registrable Securities,
Securities or Exchange Securities, as applicable, not later than
the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as, (A) in the
case of a Shelf Registration, any Electing Holders aggregating at
least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding or (B) in the case of a Market
Making Shelf Registration, Goldman, Sachs & Co., shall request in
order to expedite or facilitate the disposition of such
Registrable Securities, Securities or Exchange Securities, as
applicable; provided that the Company shall not be required to
enter into any such agreement more than twice with respect to all
of the Registrable Securities and may delay entering into any such
agreement until the consummation of any underwritten public
offering in which the Company shall be engaged provided that such
delay is reasonable;
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(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Secondary Offer
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders, Goldman,
Sachs & Co. and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope as
are customarily made in connection with an offering of debt
securities and substantially in the form set forth in the Purchase
Agreement pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the Shelf
Registration or the Market Making Shelf Registration, as
applicable; (B) obtain an opinion of counsel to the Company in
customary form and covering such matters, of the type customarily
covered by such an opinion, as the managing underwriters, if any,
and in the case of a Shelf Registration, as any Electing Holders
of at least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding or, in the case of a Market
Making Shelf Registration, as Goldman, Sachs & Co. may reasonably
request, addressed to such Electing Holder or Electing Holders,
Goldman, Sachs & Co. and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the
effective date of such Secondary Offer Registration Statement (and
if such Secondary Offer Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, Securities or Exchange Securities, as applicable,
dated the date of the closing under the underwriting agreement
relating thereto) and the date of filing of an amendment or
supplement to such Secondary Offer Registration Statement or any
other document that is incorporated in such Secondary Offer
Registration Statement by reference and includes financial data
with respect to a fiscal quarter or year, as the case may be (it
being agreed that the matters to be covered by such opinion shall
include the due incorporation and good standing of the Company and
good standing of its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign
corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization, execution and issuance, and the
validity and enforceability, of the Registrable Securities,
Securities or Exchange Securities, as applicable; the absence of
material legal or governmental proceedings involving the Company
or any of its subsidiaries; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration
or Market Making Shelf Registration, as applicable, the offering
and sale of the Registrable Securities, Securities or Exchange
Securities, as applicable, this Exchange and Registration Rights
Agreement or any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals as may be required under
state securities or blue sky laws; the material compliance as to
form of such Secondary Offer Registration Statement and any
documents incorporated by reference therein and of the Indenture
with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, respectively; and, as of the date of the opinion and
of the Secondary Offer Registration Statement or most recent
post-effective amendment thereto, as the case may be, that no
facts have come to such counsel's attention to cause them to
believe that such Secondary Offer Registration Statement and the
prospectus included therein, as then amended or supplemented, and
the documents incorporated by reference, contain any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (in the
case of such documents, in the light of the circumstances existing
at the time that such documents were filed with the Commission
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under the Exchange Act)); (C) obtain a "cold comfort" letter or
letters from the independent certified public accountants of the
Company addressed to the selling Electing Holders, Goldman, Sachs
& Co., the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of
such Secondary Offer Registration Statement and (ii) the effective
date of any prospectus supplement to the prospectus included in
such Secondary Offer Registration Statement or amendment or
supplement to such Secondary Offer Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus (and, if such Secondary Offer
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included
in such Secondary Offer Registration Statement or post-effective
amendment to such Secondary Offer Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under
the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the
type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as
may be reasonably requested, in the case of a Shelf Registration,
by any Electing Holders of at least 20% in aggregate principal
amount of the Registrable Securities at the time outstanding or,
in the case of a Market Making Shelf Registration, by Goldman,
Sachs & Co., and, in either case, the placement or sales agent, if
any, therefor and the managing underwriters, if any, thereof,
dated the effective date of such Secondary Offer Registration
Statement (and if such Secondary Offer Registration Statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, Securities or Exchange Securities, as
applicable, dated the date of the closing under the underwriting
agreement relating thereto) and the date of filing of an amendment
or supplement to such Secondary Offer Registration Statement or
any other document that is incorporated in such Secondary Offer
Registration Statement by reference and includes financial data
with respect to a fiscal quarter or year, as the case may be, to
evidence the accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in Section 5(a)
hereof and the compliance with or satisfaction of any agreements
or conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Guarantors, if any;
and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities affected thereby and Goldman, Sachs & Co. of any
proposal by the Company to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section
9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities,
Securities or Exchange Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time) thereof, whether as a holder of such Registrable
Securities, Securities or Exchange Securities or as an
underwriter, a
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placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if
such Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Secondary Offer
Registration Statement relating to such Registrable Securities,
Securities or Exchange Securities, as applicable, to exercise
usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Secondary Offer
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Registrable Securities, Securities or Exchange Securities,
(B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in
Section 6 hereof (or to such other customary extent as may be
requested by such underwriter), and (C) providing such
information to such broker-dealer as may be required in order
for such broker-dealer to comply with the requirements of the
Conduct Rules;
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen
months after the effective date of such Secondary Offer
Registration Statement, an earnings statement of the Company and
its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158
thereunder); and
(xxi) for so long as Goldman, Sachs & Co. may be required to
deliver a prospectus in connection with the offer and sale of
Securities or Exchange Securities in secondary transactions, to
furnish to Goldman, Sachs & Co. copies of all reports or other
communications (financial or other) furnished to stockholders of
the Company, and deliver to Goldman, Sachs & Co. (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange or interdealer automated quotation system on
which the Securities or Exchange Securities or any other
securities of the Company are listed or quoted and the documents
specified in Section 4.03 of the Indenture, as in effect on the
Closing; and (ii) such additional information concerning the
business and financial condition of the Company and its
subsidiaries as Goldman, Sachs & Co. may from time to time
reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company are
consolidated in reports furnished to its stockholders generally or
to the Commission).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, Goldman, Sachs &
Co., the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such person a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, Securities or Exchange Securities, as applicable, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder and Goldman, Sachs & Co.
agrees that upon receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder and Goldman, Sachs & Co. shall
forthwith discontinue the
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disposition of Registrable Securities, Securities or Exchange
Securities, as applicable, pursuant to the Secondary Offer Registration
Statement applicable to such Registrable Securities, Securities or
Exchange Securities, as applicable, until such Electing Holder or
Goldman Sachs & Co., as applicable, shall have received copies of such
amended or supplemented prospectus, and if so directed by the Company,
such Electing Holder or Goldman, Sachs & Co. shall deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies, then in such Electing Holder's or Goldman, Sachs & Co.'s
possession of the prospectus covering such Registrable Securities,
Securities or Exchange Securities, as applicable, at the time of receipt
of such notice.
(f) In addition to the information required to be provided
in a Notice and Questionnaire by each Electing Holder as to which any
Shelf Registration pursuant to Section 2(b) is being effected or to be
provided by Goldman, Sachs & Co. in connection with the Market Making
Shelf Registration pursuant to Section 2(c), the Company may require
such Electing Holder or Goldman, Sachs & Co., as applicable, to furnish
to the Company such additional information regarding such Electing
Holder or Goldman, Sachs & Co., as applicable, and such Electing
Holder's or Goldman, Sachs & Co.'s, as applicable, intended method of
distribution of the applicable Registrable Securities, Securities or
Exchange Securities, as the Company may from time to time reasonably
request in writing, but only to the extent that such information is
required or necessary in order to comply with the Securities Act. Each
such Electing Holder and Goldman, Sachs & Co. agrees to notify the
Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder or Goldman,
Sachs & Co., as the case may be, to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to
such Shelf Registration or Market Making Shelf Registration, as
applicable, contains or would contain an untrue statement of a material
fact regarding such Electing Holder or Goldman, Sachs & Co. or such
Electing Holder's or Goldman, Sachs & Co.'s intended method of
disposition of the applicable Registrable Securities, Securities or
Exchange Securities or omits to state any material fact regarding such
Electing Holder or such Electing Holder's or Goldman, Sachs & Co.'s
intended method of disposition of such Registrable Securities,
Securities or Exchange Securities, required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and promptly to furnish to the Company
any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or Goldman, Sachs & Co. or
the disposition of such Registrable Securities, Securities or Exchange
Securities, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or
compliance with this Exchange and Registration Rights Agreement,
including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of counsel for
the placement or sales agent or underwriters in connection with such
registration, filing and review, (b) all fees and expenses in connection
with the qualification of the Registrable Securities, Securities or
Exchange Securities, as applicable, for offering and sale under the
state securities and blue sky laws referred to in Section 3(d)(vi) and
3(d)(xi) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders or Goldman, Sachs & Co. may designate,
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including any fees and disbursements of counsel for the Electing Holders
or Goldman, Sachs & Co. or underwriters in connection with such
qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities or Exchange Securities for delivery and the expenses of
printing or producing any underwriting agreements, agreements among
underwriters, selling agreements and blue sky or legal investment
memoranda and all other documents in connection with the offering, sale
or delivery of Securities or Exchange Securities to be disposed of
(including certificates representing the Securities or Exchange
Securities), (d) messenger, telephone and delivery expenses relating to
the offering, sale or delivery of Securities or Exchange Securities and
the preparation of documents referred in clause (c) above, (e) fees and
expenses of the Trustee under the Indenture, any agent of the Trustee
and any counsel for the Trustee and of any collateral agent or
custodian, (f) internal expenses (including all salaries and expenses of
the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of
any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section
3(d)(xix) hereof, (i) fees, disbursements and expenses of one counsel
for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Securities held by such
Electing Holders, and one counsel for Goldman, Sachs & Co. retained in
connection with a Market Making Shelf Registration, as selected by
Goldman, Sachs & Co, (j) any fees charged by securities rating services
for rating the Securities or Exchange Securities, and (k) fees, expenses
and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities, Goldman, Sachs & Co. or any placement or sales
agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities
being registered, or Goldman, Sachs & Co., as applicable, shall pay all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of the applicable Registrable Securities,
Securities or Exchange Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally
or jointly), other than the counsel and experts specifically referred to
above.
5. Representations and Warranties.
The Company and the Guarantors, if any, represent and warrant
to, and agree with, each Purchaser and each of the holders from time to
time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities, Securities or Exchange Securities and each prospectus
(including any preliminary or summary prospectus) contained therein or
furnished pursuant to Section 3(c) or Section 3(d) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission,
as the case may be, and, in the case of an underwritten offering of
Registrable Securities, Securities or Exchange Securities, at the time
of the closing under the underwriting agreement relating
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thereto, will conform in all material respects to the requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and at all times subsequent to the applicable Effective Time
when a prospectus would be required to be delivered under the Securities
Act, other than (A) from (i) such time as a notice has been given to
holders of Registrable Securities or Goldman, Sachs & Co., as
applicable, pursuant to Section 3(d)(iii)(F) or Section 3(c)(viii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e)
hereof, or (B) during any suspension of offering and sale pursuant to
the second paragraph of Section 2(c) hereof, each such registration
statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(d)
hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
holder of Registrable Securities or Goldman, Sachs & Co., as applicable,
expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue statement
of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities or Goldman, Sachs & Co.,
as applicable, expressly for use therein.
(c) The compliance by the Company with all of the provisions
of this Exchange and Registration Rights Agreement and the consummation
of the transactions herein contemplated will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any subsidiary of
the Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or the
Guarantors, if any, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any subsidiary of the Company or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Company and the Guarantors, if
any, of the transactions contemplated by this Exchange and Registration
Rights Agreement, except in the connection with the registration under
the Securities Act of the Registrable Securities, Securities or Exchange
Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
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qualifications as may be required under state securities or blue sky
laws in connection with the offering and distribution of the Registrable
Securities, Securities or Exchange Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and the
Guarantors, if any.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors, if
any. The Company and the Guarantors, if any, jointly and severally, will
indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the
Electing Holders of Registrable Securities included in a Shelf
Registration Statement and Goldman, Sachs & Co. as holder of Securities
or Exchange Securities included in a Market Making Shelf Registration
Statement and each person who participates as a placement or sales agent
or as an underwriter in any offering or sale of such Registrable
Securities, Securities or Exchange Securities against any losses,
claims, damages or liabilities, joint or several, to which Goldman,
Sachs & Co. or such holder, Electing Holder, agent or underwriter may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration
Statement or Secondary Offer Registration Statement, as the case may be,
under which such Registrable Securities, Securities or Exchange
Securities were registered under the Securities Act, or any preliminary,
final or summary prospectus contained therein or furnished by the
Company to Goldman, Sachs & Co., any such holder, Electing Holder, agent
or underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Goldman, Sachs &
Co., such holder, such Electing Holder, such agent and such underwriter
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that neither the Company
nor any Guarantor, if any, shall be liable to any such person in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use
therein.
(b) Indemnification by the Holders and any Agents and
Underwriters in connection with any Shelf Registration. The Company may
require, as a condition to including any Registrable Securities in any
Shelf Registration filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company
shall have received an undertaking reasonably satisfactory to it from
the Electing Holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not
jointly, to (i) indemnify and hold harmless the Company, the Guarantors,
if any, and all other holders of Registrable Securities, against any
losses, claims, damages or liabilities to which the Company, the
Guarantors, if any, or such other holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder,
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agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company and the Guarantors, if any, for any legal or other
expenses reasonably incurred by the Company and the Guarantors, if any,
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this
Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Indemnification by Goldman, Sachs & Co. and any Agents
and Underwriters in Connection with the Market Making Shelf
Registration. The Company, may require, as a condition to including any
Securities or Exchange Securities in the Market Making Shelf
Registration Statement filed pursuant to Section 2(c) hereof and to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it
from each underwriter named in any such underwriting agreement,
severally and not jointly, to, and Goldman, Sachs & Co., shall and
hereby agrees to, (i) indemnify and hold harmless the Company and the
Guarantors, if any, against any losses, claims, damages or liabilities
to which the Company or the Guarantors, if any, may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Market Making Shelf Registration
Statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to Goldman, Sachs & Co. or to any
such agent or underwriter, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by
Goldman, Sachs & Co. or such underwriter expressly for use therein, and
(ii) reimburse the Company and the Guarantors, if any, for any legal or
other expenses reasonably incurred by the Company and the Guarantors, if
any, in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that, in the
case of Securities held by Goldman, Sachs & Co. at the time of the
Exchange Offer, Goldman, Sachs & Co. shall not be required to undertake
liability to any person under this Section 6(c) for any amounts in
excess of the dollar amount of the proceeds to be received by Goldman,
Sachs & Co. form the sale of such Securities by Goldman, Sachs & Co.
pursuant to the Market Making Shelf Registration.
(d) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a), (b) or (c) above of written
notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by
this Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a), 6(b) or 6(c) hereof. In
case any such action shall be brought against any
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indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable
to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim 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
any indemnified party.
(e) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a), 6(b) or 6(c) hereof are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party 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 such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(e) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them 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 this
Section 6(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), neither any holder
nor, in the case of a Market Making Shelf Registration relating to the
sale by Goldman, Sachs & Co. of Securities held by it at the time of the
Exchange Offer, Goldman, Sachs & Co. shall be required to contribute any
amount in excess of the amount by which the dollar amount of the
proceeds received by such holder from the sale of any Registrable
Securities or Goldman, Sachs & Co. from the sale of any such Securities
(after deducting any fees, discounts and commissions applicable thereto)
exceeds the amount of any damages which such holder or Goldman, Sachs &
Co., as applicable, have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the
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Registrable Securities, Securities or Exchange Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such underwriter 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 Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders', Goldman,
Sachs & Co.'s and any underwriters' obligations in this Section 6(e) to
contribute shall be several and not joint.
(f) The obligations of the Company and the Guarantors, if
any, under this Section 6 shall be in addition to any liability which
the Company or the Guarantors, if any, may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director
and partner of Goldman, Sachs & Co. each holder, agent and underwriter
and each person, if any, who controls Goldman, Sachs & Co. any holder,
agent or underwriter within the meaning of the Securities Act; and the
obligations of Goldman, Sachs & Co. the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which Goldman, Sachs & Co., the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the
Guarantors, if any, (including any person who, with his consent, is
named in any registration statement as about to become a director of the
Company or the Guarantors, if any,) and to each person, if any, who
controls the Company or the Guarantors, if any, within the meaning of
the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such holder
may participate in any underwritten offering hereunder unless such
holder (i) agrees to sell such holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable
Securities and Goldman, Sachs & Co. that to the extent it shall be
required to do so under the Exchange Act, the Company shall timely file
the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by
the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action
as any holder of Registrable Securities or Goldman, Sachs & Co. may
reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities, or Goldman, Sachs &
Co., to sell Securities or Exchange Securities without registration
under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be
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amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities or Goldman, Sachs & Co. in connection
with that holder's or Goldman, Sachs & Co.'s sale pursuant to Rule 144,
the Company shall deliver to such holder or Goldman, Sachs & Co. a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities,
Securities or Exchange Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if the Company fails to
perform any of its obligations hereunder and that the Purchasers and the
holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in
any court of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Company, to it at 7 East Redwood
Street, 10th Floor, Baltimore, Maryland 21202, and if to a holder, to
the address of such holder set forth in the security register or other
records of the Company, or to such other address as any party may have
furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and such
holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Exchange
and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by
all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and
hold the Registrable Securities subject to all of the applicable terms
hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto shall
remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of Goldman,
Sachs & Co. or any
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holder of Registrable Securities, any director, officer or partner of
Goldman, Sachs & Co. or such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any
of the foregoing, and shall survive delivery of and payment for the
Securities pursuant to the Purchase Agreement and the transfer and
registration of Securities by such holder or Goldman, Sachs & Co. and
the consummation of an Exchange Offer.
Anything herein to the contrary notwithstanding, the indemnity agreement
of the Company and the Guarantors, if any, in Section 6(a) hereof, the
representations and warranties in Section 5(a) and Section 5(b) hereof and any
representation or warranty as to the accuracy of the Secondary Offer
Registration Statement (or any preliminary, final or summary prospectus
contained therein) contained in any certificate furnished by the Company
pursuant to Section 3(d)(xvii) hereof, insofar as they may constitute a basis
for indemnification for liabilities (other than payment by the Company and the
Guarantors, if any, of expenses incurred or paid in the successful defense of
any action, suit or proceeding) arising under the Securities Act, shall not
extend to the extent of any interest therein of a controlling person or partner
of Goldman, Sachs & Co. who is a director, officer or controlling person of the
Company when the Exchange Registration Statement or the Secondary Offer
Registration Statement has become effective, except in each case to the extent
that an interest of such character shall have been determined by a court of
appropriate jurisdiction as not against public policy as expressed in the
Securities Act. Unless in the opinion of counsel for the Company the matter has
been settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue,
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part of
this Exchange and Registration Rights Agreement and shall not affect in
any way the meaning or interpretation of this Exchange and Registration
Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and Registration
Rights Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least a
majority in aggregate principal amount of the Registrable Securities at
the time outstanding and Goldman, Sachs & Co.; provided, however, that
any such amendment or waiver affecting solely provisions of this
Exchange and Registration Rights Agreement relating to the Market Making
Registration may be effected by a written instrument duly executed
solely by the Company and Goldman, Sachs & Co.. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section 9(h),
whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is delivered to such
holder.
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(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities and the address
of Goldman, Sachs & Co. shall be made available upon reasonable notice
in writing for inspection and copying on any business day by Goldman,
Sachs & Co. or any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Indenture
and this Exchange and Registration Rights Agreement) at the offices of
the Company at the address thereof set forth in Section 9(c) above or at
the office of the Trustee under the Indenture.
(j) Counterparts. This Exchange and Registration Rights
Agreement may be executed by the parties in counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your
understanding, please sign and return to us one for the Company, one for each of
the Purchasers and one for each counsel of such parties counterparts hereof, and
upon the acceptance hereof by you on behalf of each of the Purchasers, this
letter and such acceptance hereof shall constitute a binding agreement between
each of the Purchasers and the Company. It is understood that your acceptance of
this letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
ORION POWER HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
By:
--------------------------
(Goldman, Sachs & Co.)
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