EXHIBIT 4.3
THE DETROIT EDISON COMPANY
$200,000,000 4.80% 2005 SERIES A SENIOR NOTES DUE 2015
$200,000,000 5.45% 2005 SERIES B SENIOR NOTES DUE 2035
REGISTRATION RIGHTS AGREEMENT
February 7, 2005
Barclays Capital Inc.
Citigroup Global Markets Inc.
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Detroit Edison Company, a corporation organized under the laws of the State
of Michigan (the "Company"), proposes to issue and sell to certain purchasers
(the "Initial Purchasers"), for whom you (the "Representatives") are acting as
representatives, its $200,000,000 4.80% 2005 Series A Senior Notes due 2015 and
its $200,000,000 5.45% 2005 Series B Senior Notes due 2035 (the "Securities"),
upon the terms set forth in the purchase agreement between the Company and the
Representatives dated February 2, 2005 (the "Purchase Agreement") relating to
the initial placement (the "Initial Placement") of the Securities. To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Company agrees with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a "Holder" and, collectively, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section 8
hereof.
"Affiliate" shall have the meaning specified in Rule 405 under the
Act and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Detroit, Michigan.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Deferral Period" shall have the meaning indicated in Section
4(k)(ii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall mean the offering memorandum, dated
February 2, 2005, relating to the Securities, including any and all exhibits
thereto and any information incorporated by reference therein as of such date.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of June 30, 1993, between the Company and J.P. Morgan Trust Company,
National Association, as trustee, as amended and supplemented by various
supplemental indentures including the supplemental indenture creating the
Securities, as the same may be further amended and supplemented from time to
time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(e) hereof.
2
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that administer an underwritten
offering, if any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"New Securities" shall mean debt securities of the Company identical
in all material respects to the Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the
Company and the New Securities Trustee, identical in all material respects to
the Indenture (except that the transfer restrictions shall be modified or
eliminated, as appropriate, and except that no Additional Interest shall accrue
under any circumstances on any New Security that is not a Registrable Security),
which may be the Indenture if in the terms thereof appropriate provision is made
for the New Securities.
"New Securities Trustee" shall mean the Trustee or any other bank or
trust company reasonably satisfactory to the Initial Purchasers, as trustee with
respect to the New Securities under the New Securities Indenture, which may be
the Trustee.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto, including
any and all exhibits thereto and any information incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registrable Securities" shall mean (i) Securities other than those
that have been (A) registered under a Registration Statement and disposed of in
accordance therewith or (B) distributed to the public pursuant to Rule 144 under
the Act or any successor rule or regulation thereto that may be adopted by the
Commission and (ii) any New Securities resale of which by the Holder thereof
requires compliance with the prospectus delivery requirements of the Act.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant
3
to the provisions of this Agreement, any amendments and supplements to such
registration statement, including post-effective amendments (in each case
including the Prospectus contained therein), all exhibits thereto and all
material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or New Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and, not
later than 90 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act within
180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that such Holder is
not an Affiliate of the Company, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any person to
participate in the distribution of the New Securities and is not prohibited by
any law or policy of the Commission from participating in the Registered
Exchange Offer) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
4
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days and not more than 30 Business Days after the
date notice thereof is mailed to the Holders (or, in each case,
longer if required by applicable law);
(iii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that
it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New
York City, which may be the Trustee, the New Securities Trustee or
an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Company is conducting the Registered
Exchange Offer in reliance on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988),
Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991); and (B)
including a representation that the Company has not entered into any
arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that,
to the best of the Company's information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement
or understanding with any person to participate in the distribution
of the New Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
5
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction, which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities
or the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company shall issue and deliver to such Initial
Purchaser or the person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of New
Securities. The Company shall use its reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) the
Registered Exchange Offer is not consummated within 60 days following the
effectiveness of the Exchange Offer Registration Statement; (iii) for any other
reason the Registered Exchange Offer is not consummated within 240 days of the
Closing Date; (iv) any Initial Purchaser so requests with respect to Securities
that are not eligible to be exchanged for New Securities in the Registered
Exchange Offer and that are held by it following consummation of the Registered
Exchange Offer; (v) any Holder (other than an Initial Purchaser) is not eligible
to participate in the Registered Exchange Offer; or (vi) in the case of any
Initial Purchaser that participates in the Registered Exchange Offer or acquires
New Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
6
required by Item 507 or 508 of Regulation S-K under the Act in connection with
sales of New Securities acquired in exchange for such Securities shall result in
such New Securities being not "freely tradeable"; and (y) the requirement that
an Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company shall effect a Shelf Registration Statement in accordance with
subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this Section
3 ), file with the Commission and shall use its reasonable best efforts to cause
to be declared effective under the Act within 150 days after so required or
requested, a Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders thereof from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however,
that no Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided further, that with respect to New
Securities received by an Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Company may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of its obligations under this subsection with respect thereto, and
any such Exchange Offer Registration Statement, as so amended, shall be referred
to herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit
the Prospectus forming part thereof to be usable by Holders for a
period the "Shelf Registration Period") from the date the Shelf
Registration Statement is declared effective by the Commission until
(A) the second anniversary of the Closing Date or (B) the date upon
which all the Securities or New Securities, as applicable, covered
by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement. The Company shall be deemed not to
have used its reasonable best efforts to keep the Shelf Registration
Statement effective during the Shelf Registration Period if it
voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such
Securities at any time during the Shelf Registration Period, unless
such action is (x) required by applicable law or otherwise
undertaken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, and
(y) permitted pursuant to Section 4(k)(ii) hereof.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to
7
comply in all material respects with the applicable requirements of
the Act; and (B) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein (in the case of
the Prospectus, in the light of the circumstances under which they
were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to each of the Representatives and to counsel
for the Holders, not less than five Business Days prior to the
filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing) and
shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Representatives reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer,
in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus contained in the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant to
the Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, 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.
8
(c) The Company shall advise the Representatives, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company a telephone or facsimile number and address for notices, and, if
requested by any Representative or any such Holder or Exchanging Dealer, shall
confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and (B) do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not
misleading.
(d) The Company shall use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of any Registration Statement
or the qualification of the securities therein for sale in any jurisdiction and,
if issued, to obtain as soon as possible the withdrawal thereof.
(e) The Company shall furnish to each Holder of Securities covered
by any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
all material incorporated therein by reference, and, if the Holder so requests
in writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including any preliminary
Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Company consents
to the use of the Prospectus or any amendment or
9
supplement thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall arrange, if
necessary, for the qualification of the Securities or the New Securities for
sale under the laws of such jurisdictions as any Holder shall reasonably request
and shall maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering pursuant to a
Shelf Registration Statement, in any such jurisdiction where it is not then so
subject.
(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing New
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly (or within the time period
provided for by clause (ii) hereof, if applicable) prepare and file a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such circumstances,
the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 shall be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section
4(c) to and including the date when the Initial Purchasers, the
10
Holders of the Securities and any known Exchanging Dealer shall have received
such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending
corporate development or any other material event that, in the
reasonable judgment of the Company, makes it appropriate to suspend
the availability of a Shelf Registration Statement and the related
Prospectus, the Company shall give notice (without notice of the
nature or details of such events) to the Holders that the
availability of the Shelf Registration is suspended and, upon actual
receipt of any such notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration
and any Prospectus is suspended (the "Deferral Period") shall not
exceed 60 days in any three-month period or 90 days in any
twelve-month period.
(l) Not later than the effective date of any Registration Statement,
the Company shall provide a CUSIP number for the Securities or the New
Securities, as the case may be, registered under such Registration Statement and
provide the Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Act as soon as practicable after the effective date of the applicable
Registration Statement and in any event no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement.
(n) The Company shall cause the New Securities Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into customary agreements (including, if requested, an underwriting
agreement in customary form) and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Securities,
and in connection therewith, if an underwriting agreement is
11
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available during regular business hours
for inspection by the Holders of Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records and pertinent
corporate documents of the Company and its subsidiaries;
(ii) cause the Company's officers, directors, employees,
accountants and auditors, and use its reasonable best efforts to
cause the Company's independent certified public accountants, to
supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations;
(iii) make such representations and warranties to the Holders
of Securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by the Company to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions
requested in the Company's underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters;
(v) use its reasonable best efforts to obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of
Securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered
in "comfort" letters in connection with the Company's primary
underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders or the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
12
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company shall, if requested by an Initial Purchaser, or by a broker dealer that
holds Securities that were acquired as a result of market making or other
trading activities:
(i) make reasonably available during regular business hours
for inspection by the requesting party and any attorney, accountant
or other agent retained by the requesting party, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors, employees,
accountants and auditors, and use its reasonable best efforts to
cause the Company's independent certified public accountants, to
supply all relevant information reasonably requested by the
requesting party or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations;
(iii) make such representations and warranties to the
requesting party, in form, substance and scope as are customarily
made by the Company to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the requesting party and its
counsel, addressed to the requesting party, covering such matters as
are customarily covered in opinions requested in the Company's
underwritten offerings and such other matters as may be reasonably
requested by the requesting party or its counsel;
(v) use its reasonable best efforts to obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to the requesting party, in
customary form and covering matters of the type customarily covered
in "comfort" letters in connection with the Company's primary
underwritten offerings, or if requested by the requesting party or
its counsel in lieu of a "comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35, covering
matters requested by the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the requesting party or its counsel,
including those to evidence
13
compliance with Section 4(k) and with conditions customarily
contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person as
directed by the Company) in exchange for the New Securities, the Company shall
mark, or caused to be marked, on the Securities so exchanged that such
Securities are being cancelled in exchange for the New Securities. In no event
shall the Securities be marked as paid or otherwise satisfied.
(t) The Company shall use its reasonable best efforts to cause the
Securities, or the New Securities, as the case may be, covered by a Registration
Statement, to be rated by at least one nationally recognized statistical rating
agency.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the NASD Rules)
thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company shall assist such Broker-Dealer in complying with the NASD Rules.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration and issuance of the Securities
or the New Securities, as the case may be, covered by a Registration Statement,
including, without limitation, obtaining all necessary consents, approvals,
authorizations or orders of any governmental agency or authority, including the
Federal Energy Regulatory Commission.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel (which shall initially be Dewey Ballantine LLP, but which may be another
nationally recognized law firm experienced in securities matters designated by
the Majority Holders) to act as counsel for the Holders in connection therewith,
and, in the case of any Exchange Offer Registration Statement, will reimburse
the Initial Purchasers for the reasonable fees and disbursements of counsel
acting in connection therewith.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Holder of Securities or New Securities, as the
case may be, covered by any Registration Statement, each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in Section 4(h) hereof,
each Exchanging Dealer, the directors, officers, employees, Affiliates and
agents of each such Holder, Initial Purchaser or Exchanging Dealer and each
person who controls any such Holder, Initial Purchaser or Exchanging Dealer
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange
14
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any preliminary Prospectus or the Prospectus, in the
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable to any Holder, or director, officer,
employee, Affiliate or agent of such Holder, or any person who controls any such
Holder (other than any Initial Purchaser or Exchanging Dealer, or the directors,
officers, employees, Affiliates and agents of any such Initial Purchaser or
Exchanging Dealer or any person who controls any such Initial Purchaser or
Exchanging Dealer) in any such case unless the party claiming indemnification
was required to deliver a copy of such preliminary Prospectus or Prospectus, and
did, in fact, make such delivery; and provided, further, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the party claiming indemnification specifically for inclusion therein.
This indemnity agreement shall be in addition to any liability that the Company
may otherwise have.
The Company also agrees to indemnify as provided in this Section
6(a) or contribute as provided in Section 6(d) hereof to Losses of each
underwriter, if any, of Securities or New Securities, as the case may be,
registered under a Shelf Registration Statement, their directors, officers,
employees, Affiliates or agents and each person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs such Registration Statement and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof giving information as to the nature and
basis of the claim, but the omission so to notify the indemnifying party shall
not relieve it
15
from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the 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, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection 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. If the indemnifying party assumes the defense, selected counsel
may be counsel to the indemnifying party, unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of separate
counsel for the indemnified party or (ii) in the written opinion of counsel to
such indemnified party, representation of both parties by the same counsel would
be inappropriate due to actual or likely conflicts of interest between them or
defenses available to the indemnified party which are different from, additional
to or in competition with those available to the indemnifying party, in either
of which cases the reasonable fees and expenses of such separate counsel
(including disbursements) for such indemnified party shall be reimbursed by the
indemnifying party to the indemnified party. It is understood that the
indemnifying party shall not, in connection with any litigation or proceeding or
related litigation or proceedings in the same jurisdiction as to which the
indemnified parties are entitled to such separate representation, be liable
under this Agreement for the reasonable fees and out-of-pocket expenses for more
than one separate firm (together with not more than one appropriate local
counsel) for all such indemnified parties.
(d) In furtherance of the requirement above that fees and expenses
of counsel (to the extent the indemnifying party does not assume the defense) or
any separate counsel for the indemnified parties shall be reasonable, the
Holders and the Company agree that the indemnifying party's obligations to pay
such fees and expenses shall be conditioned upon the following:
(i) in case separate counsel is proposed to be retained by
the indemnified parties pursuant to clause (ii) of the preceding
paragraph, the indemnified parties shall, if appropriate, in good
faith fully consult with the indemnifying party in advance as to the
selection of such counsel; and
(ii) reimbursable fees and expenses of such separate counsel
shall be detailed and supported in a manner reasonably acceptable to
the indemnifying party (but nothing herein shall be deemed to
require the furnishing to the indemnifying party of any information,
including, without limitation, computer print-outs of lawyers' daily
time entries, to the extent that, in the judgment of such counsel,
furnishing such information might reasonably be expected to result
in a waiver of any attorney-client privilege) and presented to the
indemnifying party as soon as practicable following receipt of such
counsel's invoice.
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,
16
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.
The indemnifying party shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees, subject to the provisions of this Section 6, to
indemnify the indemnified party from and against any loss, damage, liability or
expenses by reason of such settlement or judgment.
(e) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim,
liability, damage or action) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Securities purchased by such Initial Purchaser, or in the case of New
Securities, applicable to the Securities that were exchangeable into such New
Securities, as set forth in the Final Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the Initial Placement (before deducting expenses) as set forth in
the Final Memorandum. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Memorandum, and benefits received by any other
Holder shall be deemed to be equal to the total net proceeds realized by such
Holder from the sale of Securities or New Securities, as applicable, registered
under the Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information
17
and opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (e), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person who controls a
Holder within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (e).
(f) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the indemnified persons referred to in this Section 6, and
will survive the sale by a Holder of securities covered by a Registration
Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably 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. Registration Defaults. Additional interest ("Additional
Interest") with respect to the Registrable Securities shall be assessed as
follows if any of the following events occur (each such event in clauses (a)
through (f) being herein called a "Registration Default"):
(a) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Closing Date; or
(b) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 180th day following the Closing
Date; or
(c) the Registered Exchange Offer is not consummated on or prior to
the 60th day following the effectiveness of the Exchange Offer Registration
Statement; or
(d) any Shelf Registration Statement required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement; or
18
(e) any Shelf Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the date specified for
such effectiveness under this Agreement; or
(f) any Registration Statement required by this Agreement has been
declared effective but such Registration Statement thereafter ceases to be
effective, or is unusable for its intended purpose, without being succeeded
within 45 Business Days by post-effective amendment to such Registration
Statement or, an additional Registration Statement, filed and declared
effective.
Additional Interest shall accrue on the Registrable Securities (and
on the Company's Pledged Bonds (as defined in the Indenture) pledged under the
Indenture with respect to such Securities) over and above the interest set forth
in the title of such Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate (the "Additional Interest
Rate") of 0.25% per annum during the 90-day period immediately following the
occurrence of such Registration Default and shall increase by 0.25% per annum at
the end of each subsequent 90-day period, but in no event shall the Additional
Interest Rate exceed 0.50% per annum.
Following the cure of all Registration Defaults, the accrual of
Additional Interest shall cease.
9. Rules 144 and 144A. The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Securities identified to the Company by the Initial Purchasers
upon request. Upon the request of any Holder, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 9 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
10. No Inconsistent Agreements. The Company has not entered into,
and agrees not to enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
11. Amendments and Waivers. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such
19
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective; provided, further, that no amendment,
qualification, supplement, waiver or consent with respect to Section 8 hereof
shall be effective as against any Holder of Registered Securities unless
consented to in writing by such Holder; and provided, further, that the
provisions of this Section 11 may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
12. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 12, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(b) if to the Representatives, initially at the address or addresses
set forth in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
13. Remedies. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive in any action for specific performance the defense that a
remedy at law would be adequate.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Registrable Securities, and the
indemnified persons referred to in Section 6 hereof. The Company hereby agrees
to extend the benefits of this Agreement to any Holder of Registrable
Securities, and any
20
such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York. The parties hereto
each hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
18. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
19. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the several Initial Purchasers.
Very truly yours,
THE DETROIT EDISON COMPANY
By:
--------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Barclays Capital Inc.
Citigroup Global Markets Inc.
By: Citigroup Global Markets Inc.
By
---------------------------
Name:
Title:
For themselves and as Representatives of
the other several Initial Purchasers named
in Schedule I to the Purchase Agreement.
22
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the expiration date
and ending on the close of business one year after the expiration date, it will
make this prospectus available to any broker-dealer for use in connection with
any such resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives new securities for its own account
in exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the expiration date and ending on the close of business one
year after the expiration date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until __________, ______, all dealers effecting
transactions in the new securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of new
securities by brokers-dealers. New securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of one year after the expiration date, the Company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
C-1
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________________
Address: ____________________________________
____________________________________
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the new securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of new securities
and it has no arrangements or understandings with any person to participate in a
distribution of the new securities. If the undersigned is a Broker-Dealer that
will receive new securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for new securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such new securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1