EXHIBIT 4.5
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SALTON SEA FUNDING CORPORATION
$70,000,000 7.02% Senior Secured Series D Notes
Due May 30, 2000
$65,000,000 8.30% Senior Secured Series E Bonds
Due May 30, 2011
June 20, 1996
CS FIRST BOSTON CORPORATION
55 East 52nd Street
New York, NeW York 10055
Ladies and Gentlemen:
In connection with the issue and sale of $70,000,000
principal amount of 7.02% Senior Secured Series D Bonds Due May 30, 2000 and
the $65,000,000 principal amount of 8.30% Senior Secured Series E Bonds Due
May 30, 2011 (the "Additional Securities") issued by Salton Sea Funding
Corporation, a Delaware corporation (the "Company") pursuant to the terms of
the Indenture (as defined below) and as an inducement to CS First Boston
Corporation (the "Initial Purchaser") to enter into the Purchase Agreement
dated June 17, 1996 (the "Purchase Agreement") among the Company, Salton Sea
Brine Processing L.P., Salton Sea Power Generation L.P., Fish Lake Power
Company, CalEnergy Operating Company, Vulcan Power Company, BN Geothermal,
Inc., San Felipe Energy Company, Conejo Energy Company, Niguel Energy Company,
Vulcan/BN Geothermal Power Company, Leathers, L.P., Elmore, L.P., Del Ranch,
L.P., Salton Sea Royalty Company, and the Initial Purchaser, the Company
hereby agrees to provide the registration rights set forth in this
Registration Rights Agreement (this "Agreement") for the benefit of the
holders of the Additional Securities. The execution of this Agreement is a
condition to the pur-
chase of the Additional Securities under the Purchase Agreement.
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall equally apply to both the
singular and plural forms of the terms defined. As used in this Agreement, the
following terms shall have the following meanings:
"Additional Securities" shall have the meaning set forth in
the first paragraph of this Agreement.
"Advice" shall have the meaning set forth in the last
paragraph of Section 5 of this Agreement.
"Affiliate", with respect to any Person, shall mean any
other Person that directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with such first Person.
The term "control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or by contract or
otherwise. For purposes of Section 2, an "Affiliate" of the Company shall mean
and include, in addition, any Person deemed an affiliate thereof under the
Securities Act or the Exchange Act in connection with the Exchange Offer.
"Closing Date" shall mean the date of the initial issuance
and sale of the Additional Securities.
"Commission" shall mean the United States Securities and
Exchange Commission.
"Company" shall have the meaning set forth in the first
paragraph of this Agreement.
"Cure Date" shall have the meaning set forth in Section 4(a)
of this Agreement.
"Effective Date" shall mean the date which is 270 days after
the Closing Date.
"Effective Period" shall have the meaning set forth in
Section 3(a) of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer" shall have the meaning set forth in Section
2(a) of this Agreement.
"Exchange Offer Registration Statement" shall have the
meaning set forth in Section 2(a) of this Agreement.
"Exchange Period" shall have the meaning set forth in
Section 2(a) of this Agreement.
"Exchange Securities" shall have the meaning set forth in
Section 2(a) of this Agreement.
A "holder" of Registrable Securities shall mean the
registered holder of such securities or any beneficial owner thereof.
"Holder Indemnified Party" shall have the meaning set forth
in Section 8(a) of this Agreement.
"Holder Information" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Illiquidity Event" with respect to the Additional
Securities shall mean any of the following events:
(a) as of the Effective Date, both (i) an Exchange Offer
Registration Statement (which, if applicable pursuant to Section
2(a), covers resales of such Exchange Securities) has not become
effective and (ii) the Registrable Securities are not the subject of
an Initial Shelf Registration Statement which has become effective;
or
(b) the Exchange Securities offered in exchange for the
Registrable Securities are the subject of an Exchange Offer
Registration Statement which was effective (and which, if applicable
pursu-
ant to Section 2(a), covered resales of such Exchange
Securities) but which ceased to be effective for any reason prior to
the end of the Exchange Period; or
(c) the Registrable Securities are the subject of an Initial
Shelf Registration Statement or Subsequent Shelf Registration
Statement which was effective but which has ceased to be effective
for any reason prior to the end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on
the date subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in clause
(a) above either (i) an Exchange Offer Registration Statement (which,
if applicable pursuant to Section 2(a), covers resales of the
Exchange Securities exchanged for such Registrable Securities) shall
become effective and an Exchange Offer for such Registrable
Securities shall have commenced or (ii) an Initial Shelf Registration
Statement covering such Registrable Securities shall become
effective; or
(ii) in the case of an Illiquidity Event described in clause
(b) above, either (i) an Exchange Offer Registration Statement
(which, if applicable pursuant to Section 2(a), covers resales of the
Exchange Securities offered in exchange for such Additional
Securities) shall become effective and an Exchange Offer for such
Registrable Securities shall have commenced pursuant to an Exchange
Offer Registration Statement or (ii) an Initial Shelf Registration
Statement covering such Registrable Securities shall become
effective; or
(iii) in the case of an Illiquidity Event described in
clause (c) above, a Subsequent Shelf Registration Statement covering
such Registrable Securities shall become effective.
"Indenture" shall mean the Trust Indenture dated as of July
21, 1995, as supplemented by the First Supplemental Indenture dated as of
October 18, 1995, and
by the Second Supplemental Indenture dated as of June 20, 1996, and as further
amended or supplemented from time to time in accordance with the terms
thereof, between the Company and the Trustee, and pursuant to which the
Additional Securities are to be issued.
"Initial Purchaser" shall have the meaning set forth in the
first paragraph of this Agreement.
"Initial Shelf Registration Statement" shall have the
meaning set forth in Section 3(a) of this Agreement.
"Inspectors" shall have the meaning set forth in Section 5(m)
of this Agreement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
Underwritten Offering.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments and all material incorporated by reference into such
prospectus.
"Purchase Agreement" shall have the meaning set forth in the
first paragraph of this Agreement.
"Records" shall have the meaning set forth in Section 5(m) of
this Agreement.
"Registrable Securities" shall mean the Additional
Securities upon original issuance thereof and at all times subsequent thereto
until, in the case of any such Additional Security, (i) a Registration
Statement covering such Additional Security, or the Exchange Security to be
exchanged for such Additional Security (and,
in the case of any Resale Security, any resale thereof), has been declared
effective and such Additional Security has been disposed of or exchanged (or,
in any case where such Registration Statement covers the resale of Resale
Securities, such Additional Security has been exchanged and the Resale
Security received therefor has been resold), as the case may be, in accordance
with such effective Registration Statement, (ii) it is sold in compliance with
Rule 144 or would be permitted to be sold pursuant to Rule 144(k), (iii) it
shall have been otherwise transferred and a new certificate for any such
Additional Security not bearing a legend restricting further transfer shall
have been delivered by or on behalf of the Company and such Additional
Security shall be tradeable by each holder thereof without restriction under
the Securities Act or the Exchange Act and without material restriction under
the applicable blue sky or state securities laws or (iv) it ceases to be
outstanding.
"Registration Statement" shall mean any registration
statement (including any Shelf Registration Statement) of the Company that
covers any of the Registrable Securities or the Exchange Securities, as the
case may be, pursuant to the provisions of this Agreement, including the
Prospectus which is part of such Registration Statement, amendments (including
post-effective amendments) and supplements to such Registration Statement and
all exhibits and appendices to any of the foregoing. For purposes of the
foregoing, unless the context requires otherwise, a Registration Statement for
an Exchange Offer shall not be deemed to cover Registrable Securities held by
a Restricted Person unless such Registration Statement covers the resale of
Resale Securities to be received by such Restricted Person pursuant to such
Exchange Offer and any such Additional Securities shall continue to be
Registrable Securities.
"Resale Initial Purchaser" shall have the meaning set forth
in Section 8(a) of this Agreement.
"Resale Securities" shall mean any Exchange Security
received by a Restricted Person pursuant to an Exchange Offer, and at all
times subsequent thereto, until, subject to the time periods set forth herein,
such
Exchange Security has been resold by such Restricted Person.
"Restricted Person" shall mean (a) any Affiliate of the
Company, (b) the Initial Purchaser or (c) any Affiliate of the Initial
Purchaser (other than Affiliates of the Initial Purchaser that (i) are
acquiring Exchange Securities in the ordinary course of business and do not
have an arrangement with any Person to distribute Exchange Securities and (ii)
may trade such Exchange Securities without restriction under the Securities
Act).
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" shall mean Rule 144A under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Shelf Notice" shall have the meaning set forth in Section
2(b) of this Agreement.
"Shelf Registration Statement" shall have the meaning set
forth in Section 3(b) of this Agreement.
"Special Counsel" shall mean Skadden, Arps, Slate, Meagher &
Flom, special counsel to the Initial Purchaser, or any other firm acceptable
to the Company, acting as special counsel to the holders of Registrable
Securities or Exchange Securities.
"Subsequent Shelf Registration Statement" shall have the
meaning set forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Trustee" shall mean Chemical Trust Company of California,
its successors and any successor trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall
mean a registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
2. Exchange Offer.
(a) Unless the Company determines in good faith that the
Exchange Offer shall not be permissible under applicable law or Commission
policy, the Company shall prepare and cause to be filed with the Commission as
soon as reasonably practicable after the Closing Date, subject to Sections
2(b) and 2(c) of this Agreement, a Registration Statement (an "Exchange Offer
Registration Statement") for an offer to exchange (an "Exchange Offer") the
Registrable Securities (subject to Section 2(c)) for a like aggregate
principal amount of debt securities of the Company that are in all material
respects substantially identical to the Additional Securities (the "Exchange
Securities") (and which are entitled to the benefits of the Indenture, which
shall be qualified under the TIA in connection with such registration or a
trust indenture which is substantially identical in all material respects to
the Indenture), other than (i) such changes to the Indenture or any such
substantially identical indenture as the Trustee and the Company may deem
necessary in connection with the Trustee's rights and duties or to comply with
any requirements of the Commission to effect or maintain the qualification
thereof under the TIA and (ii) such changes relating to restrictions on
transfer set forth in the Indenture. The Exchange Offer shall be registered
under the Securities Act on the appropriate form of Registration Statement and
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and with all other applicable laws. Subject to the terms and
limitations of Section 2(c), such Exchange Offer Registration Statement
may also cover any resales of Exchange Securities by any Restricted Person, in
the manner or manners designated by them which, in any event, is reasonably
acceptable to the Company.
The Company shall use its reasonable best efforts to (i)
cause the Exchange Offer Registration Statement to become effective under the
Securities Act on or prior to the Effective Date, (ii) keep the Exchange Offer
open for a period of not less than the shorter of (A) the period ending when
the last remaining Additional Security is tendered into the Exchange Offer and
(B) 30 days from the date notice is mailed to the holders of Additional
Securities (provided that in no event shall such period be less than the
period required under applicable Federal and state securities laws), and (iii)
maintain such Exchange Offer Registration Statement continuously effective for
a period (the "Exchange Period") of not less than the longer of (A) the period
until the consummation of the Exchange Offer and (B) 120 days after
effectiveness of the Exchange Offer Registration Statement, provided however,
that in the event that all resales of Exchange Securities (including, subject
to the time periods set forth herein, any Resale Securities and including,
subject to the time periods set forth herein, any resales by broker-dealers
that receive Exchange Securities for their own account pursuant to the
Exchange Offer) covered by such Exchange Offer Registration Statement have
been made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above. Upon
consummation of the Exchange Offer, the Company shall deliver to the Trustee
under the Indenture for cancellation all Additional Securities tendered by the
holders thereof pursuant to the Exchange Offer and not withdrawn prior to the
Consummation Date. Each Restricted Person shall notify the Company promptly
after reselling all Resale Securities held by such Restricted Person which are
covered by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the
Exchange Offer (other than any Restricted Person) shall be required as a
condition to participating in the Exchange Offer to represent that (i) it is
not an Affiliate of the Company, (ii) any Exchange Securities to be received
by it shall be acquired in the
ordinary course of its business and (iii) that at the time of the consummation
of the Exchange Offer it shall have no arrangement with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities. Upon consummation of an Exchange Offer in accordance
with this Section 2 and compliance with the other provisions of this Section
2, the Company shall, subject to Sections 2(b) and 2(c), have no further
obligation to register Registrable Securities pursuant to Section 3(a) of this
Agreement; provided that the other provisions of this Agreement shall continue
to apply as set forth in such provisions.
(b) In the event that the Company reasonably determines in
good faith that (i) the Exchange Securities would not, upon receipt in the
Exchange Offer by any holder of Registrable Securities (other than any
Restricted Person and other than any holder who is not acquiring such Exchange
Securities in the ordinary course of business or who has an arrangement with
any person to participate in the distribution of such Exchange Securities) be
tradeable by each holder thereof without restriction under the Securities Act
and the Exchange Act and without restriction under applicable blue sky or
state securities laws, (ii) after conferring with counsel, the Commission is
unlikely to permit the Exchange Offer Registration Statement to become
effective prior to the Effective Date (except in the circumstances set forth
in Section 2(c)) or (iii) the Exchange Offer may not be made in compliance
with applicable laws, then the Company shall promptly deliver notice thereof
(the "Shelf Notice") to the holders of the Registrable Securities and the
Trustee and shall thereafter file an Initial Shelf Registration Statement
pursuant to, and otherwise comply with, the provisions of Section 3(a).
Following the delivery of a Shelf Notice in accordance with this Section 2(b)
and compliance with Section 3(a), the Company shall not have any further
obligation under this Section 2.
(c) In the event that the Company reasonably determines in
good faith that (i) the Exchange Securities would not, upon consummation of
any resale thereof by a Restricted Person to any Person other than another
Restricted Person, be tradeable by each holder thereof without restriction
under the Securities Act (other than
applicable prospectus requirements) and the Exchange Act and without
restriction under applicable blue sky or state securities laws or (ii) the
Commission is unlikely to permit the Exchange Offer Registration Statement to
become effective prior to the Effective Date solely because such Registration
Statement covers resales of the Exchange Securities by Restricted Persons,
then the Company shall promptly deliver a Shelf Notice to the Restricted
Persons who are holders of Registrable Securities and the Trustee, and the
Company shall thereafter file an Initial Shelf Registration Statement with
respect to any such Registrable Securities pursuant to, and otherwise comply
with, the provisions of Section 3(a); provided that such Initial Shelf
Registration Statement shall only cover resales of Registrable Securities by
Restricted Persons if a Shelf Notice is not then otherwise required to be
delivered pursuant to Section 2(b) and provided further that such Initial
Shelf Registration Statement covering Registrable Securities held by
Restricted Persons shall be kept effective for at least a period of 120 days
and is not required to remain effective with respect to such Registrable
Securities held by Restricted Persons thereafter. Following the delivery of a
Shelf Notice in accordance with this Section 2(c) and compliance with Section
3(a), the Company shall not have any further obligation under this Section 2
with respect to the filing of an offer to exchange the Registrable Securities
held by the Restricted Persons (including, without limitation, any obligation
to provide that an Exchange Offer Registration Statement filed pursuant to
Section 2(a) cover resales of Exchange Securities by Restricted Persons);
provided that the provisions of this Section 2 shall otherwise remain in full
force and effect with respect to Registrable Securities held by any person
other than a Restricted Person.
3. Shelf Registration; Registrable Securities.
With respect to the Registrable Securities, if a Shelf Notice is delivered in
accordance with Section 2(b) or (c) of this Agreement, then the Company shall
comply with the following provisions of this Section 3:
(a) Initial Shelf Registration. The Company shall prepare
and cause to be filed with the Commission a Registration Statement for an
offering to be made on a continuous basis other than pursuant to an
Underwritten
Offer pursuant to Rule 415 covering all of the Registrable Securities (or, if
a Shelf Notice is delivered solely pursuant to Section 2(c), all of the
Registrable Securities held by any Restricted Persons) (the "Initial Shelf
Registration Statement"); provided, however, that no holder shall be entitled
to have its Registrable Securities covered by such Initial Shelf Registration
Statement unless such holder agrees in writing, within 10 Business Days after
actual receipt of a request therefrom, to be bound by all the provisions of
this Agreement applicable to such a holder. No holder shall be entitled to the
benefits of Section 4 of this Agreement unless and until such Holder shall
have provided all information reasonably requested by the Company (after
conferring with counsel), and such holder shall not be entitled to such
benefits with respect to any period during which such information was not
provided. Each holder to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such holder not materially misleading. The Initial Shelf
Registration Statement shall be an appropriate form permitting registration of
such Registrable Securities for resale by the holders thereof in the manner or
manners reasonably designated by them (but excluding any Underwritten
Offerings). The Company shall use its reasonable best efforts to (A) cause the
Initial Shelf Registration Statement to be declared effective under the
Securities Act on or prior to the Effective Date and (B) keep the Initial
Shelf Registration Statement continuously effective under the Securities Act
for a period of three years after the Closing Date (subject to extension
pursuant to the last paragraph of Section 5 and subject, with respect to
Registrable Securities held by Restricted Persons, to the limitations set
forth in Section 2(c)) (such three-year period, as it may be extended, being
the "Effective Period"), or such shorter period ending when (1) all
Registrable Securities covered by the Initial Shelf Registration Statement
have been sold or (2) a Subsequent Shelf Registration Statement covering all
of such Registrable Securities remaining unsold has been declared effective
under the Securities Act or (3) all Registrable Securities may be sold
pursuant to subsection (k) of Rule 144.
Notwithstanding any other provision hereof, the Company may
postpone or suspend the filing or the effectiveness of a Registration
Statement (or any amendments or supplements thereto), if (1) such action is
required by applicable law, or (2) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
other pending corporate developments, public filings with the Commission or
other similar events, so long as the Company promptly thereafter complies with
the requirements of Section 5(b) hereof, if applicable. Notwithstanding the
occurrence of any event referred to in the immediate preceding sentence (a
"Suspension"), such event shall not suspend, postpone or in any other manner
affect the running of the time period after which an Illiquidity Event shall
be deemed to occur and, if the filing or effectiveness of the Registration
Statement is postponed or suspended as a result of a Suspension, an
Illiquidity Event shall nonetheless exist if all other requirements set forth
for the occurrence of an Illiquidity Event shall be satisfied, and the
provisions of Section 4 requiring the accrual payment of additional interest,
as set forth in such Section, on the Registrable Securities, shall be
applicable.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases
to be effective for any reason at any time during the Effective Period after
the Effective Date, the Company may attempt to obtain the withdrawal of any
order suspending the effectiveness thereof, and may amend such Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
applicable to the Additional Securities pursuant to Rule 415 covering all of
such Registrable Securities remaining unsold (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is declared
effective, the Company shall use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective for a period after the
date of such effectiveness equal in length to the length of the Effective
Period plus the aggregate number of days from the
date of the order suspending the effectiveness of the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement to the
date of the effectiveness of the Subsequent Shelf Registration Statement. As
used herein, the term "Shelf Registration Statement" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement.
4. Additional Interest for Illiquidity.
(a) The Company acknowledges and agrees that the Initial
Purchaser (and any subsequent holders of the Additional Securities) has
acquired Additional Securities in reliance on the Company's covenant to use
its reasonable best efforts to (i) cause to become effective on or prior to
the Effective Date (A) the Exchange Offer Registration Statement or (B) an
Initial Shelf Registration Statement, and (ii) maintain the respective
effectiveness of such Registration Statements as described herein. The Company
further acknowledges and agrees that the failure of the Company to fulfill
such covenants will have an adverse effect on the holders of the Additional
Securities. Therefore, the Company agrees that from and after the date on
which any Illiquidity Event occurs, additional interest (in addition to the
interest otherwise payable with respect to the Registrable Securities) shall
accrue with respect to the Additional Securities until but not including the
date on which such Illiquidity Event shall cease to exist (and provided no
other Illiquidity Event with respect to any Additional Securities shall then
be continuing), at the rate of one half of one percent (0.50%) per annum,
which additional interest shall be payable by the Company to the holders of
all Additional Securities at the times, in the manner and subject to the same
terms and conditions set forth in the Indenture, as nearly as may be, as
though the interest rates provided in such Additional Securities had been
increased by one half of one percent (0.50%) per annum. Notwithstanding that
the Illiquidity Event may cease to exist, in the event that an Exchange Offer
Registration Statement or an Initial Shelf Registration Statement has not
become effective within two years after the Closing Date, the interest rates
on the Additional Securities otherwise payable as provided in the Indenture
shall permanently remain increased by such one half of one percent (0.50%) per
annum. Subject to the provisions of this Section 4,
the Company agrees that it shall be liable to the holders of all Additional
Securities for the payment of any and all additional interest on the
Additional Securities that shall accrue pursuant to this Section 4.
Any such additional interest accrued on any such Additional
Securities but unpaid on the date on which such interest ceases to accrue (the
"Cure Date") shall be due and payable on the first interest payment date
following the next record date following such Cure Date (or the record date
occurring on such Cure Date, if such Cure Date is a record date) to the
holders of record of such Additional Securities on such record date.
(b) The Company shall promptly notify the holders of the
Additional Securities and the Trustee of the occurrence of any Illiquidity
Event of which it has knowledge.
Notwithstanding the foregoing, the Company shall not be
required to pay the additional interest described in clause (a) of this
Section 4 to a holder with respect to the Registrable Securities held by such
holder if the applicable Illiquidity Event arises by reason of the failure of
such holder to provide such information (i) the Company may reasonably
request, with reasonable prior written notice, for use in the Shelf
Registration Statement or any Prospectus included therein to the extent the
Company reasonably determines that such information is required to be included
therein by applicable law, (ii) the NASD or the Commission may request in
connection with such Shelf Registration Statement, or (iii) is required to
comply with the agreements of such holder contained in clause (a) of Section 3
to the extent compliance thereof is necessary for the Shelf Registration
Statement to be declared effective.
5. Registration Procedures. In connection with the
registration of any Registrable Securities or Exchange Securities pursuant to
Sections 2 and 3 hereof, the Company shall use its reasonable best efforts to
effect such registration to permit the sale of such Registrable Securities or
Exchange Securities in accordance with any permitted intended method or
methods of disposition thereof, and pursuant thereto the Company shall:
(a) prepare and cause to be filed with the Commission a
Registration Statement or Registration Statements as prescribed by Sections 2
and 3 of this Agreement, and use its best efforts to cause each such
Registration Statement to become effective and remain effective for the
applicable period as provided herein; provided, however, that (i) during the
period in which the Initial Registration Statement is open for the Restricted
Persons, the Company shall afford any Restricted Person which is a holder of
Registrable Securities or Exchange Securities and the Special Counsel, upon
such holder's written request to the Company, an opportunity to review copies
of all such documents proposed to be filed, and (ii) if such filing is
pursuant to Section 3, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto (including documents that would be
incorporated therein by reference after the initial filing of the Registration
Statement), the Company shall afford the Special Counsel for all holders of
the Registrable Securities covered by such Registration Statement an
opportunity to review copies of all such documents proposed to be filed;
(b) prepare and cause to be filed with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement
as may be necessary to keep such Registration Statement continuously effective
for the applicable period as provided herein; cause the related Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
promulgated thereunder with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as
so supplemented in accordance with the intended methods of disposition by the
sellers of Registrable Securities covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof, notify the selling holders of Registrable Securities
promptly after the Company becomes aware thereof, and confirm such notice in
writ-
ing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or Prospectus or the initiation of any proceedings for
that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of a Registration Statement or any of the Registrable Securities for offer or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose, (v) of the existence of any fact known to the Company which results
in such Registration Statement or related Prospectus or any document
incorporated therein by reference containing any untrue statement of a
material fact or omitting to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (which notice may be
accompanied by an instruction that such notice constitutes material non-public
information and to suspend the use of the prospectus until the requisite
changes have been made, and which instruction shall require that such holders
shall not communicate such material non-public information to any third party
and shall not sell or purchase, or offer to sell or purchase, any securities
of the Company after receipt of such notice) and (vi) if the Company
reasonably determines that the filing of a post-effective amendment to such
Registration Statement would be appropriate;
(d) if a Shelf Registration Statement is filed pursuant to
Section 3, use its reasonable efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to
Section 3, furnish to each selling holder of Registrable Securities who so
requests (at such holder's address set forth in the Securities Register)
without charge, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(f) if a Shelf Registration Statement is filed pursuant to
Section 3, deliver to each selling holder of Registrable Securities without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and each amendment or supplement thereto as such persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Registrable Securities
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto;
(g) prior to any public offering of Registrable Securities,
register or qualify, or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions within the
United States as the selling holders reasonably request in writing (provided
that, if Registrable Securities are offered other than through an Underwritten
Offering, the Company agrees to cause its counsel to perform blue sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(g)); keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective; and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions
of the Registrable Securities covered by the applicable Registration
Statement; provided, however, that the Company
will not be required to qualify as a foreign corporation, or to do business,
to file a general consent or take any action which would subject it to service
of process in any jurisdiction or take any action which would subject itself
to taxation in any such jurisdiction;
(h) if a Shelf Registration Statement is filed pursuant to
Section 3, cooperate with the Trustee, and the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company, and enable such Registrable Securities to be in
such authorized denominations and registered in such names as the holders may
reasonably request at least three business days prior to any such sale;
(i) if a Shelf Registration Statement is filed pursuant to
Section 3, upon the occurrence of any event contemplated by Section 5(c),
prepare a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Company so
notifies the holders to suspend the use of the Prospectus after the occurrence
of such an event, the holders shall suspend use of the Prospectus, and not
communicate such material non-public information to any third party, and not
sell or purchase, or offer to sell or purchase, any securities of the Company,
until the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to continue to be rated by
the rating agencies that initially rated the Additional Securities during the
period that the Registration Statement is required hereunder to remain
effective (it being acknowledged, however, that the foregoing shall not be
deemed to require the
Company to maintain the rating of such Registrable Securities at the rating
given the Additional Securities);
(k) prior to the effective date of the first Registration
Statement relating to the Registrable Securities or the Exchange Securities,
as the case may be, (i) provide the Trustee with printed certificates for such
securities in definitive form or in a global form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for such
Registrable Securities or Exchange Securities represented by such
certificates;
(l) if a Shelf Registration Statement is filed pursuant to
Section 3, enter into such reasonably required agreements and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of such Registrable Securities;
(m) in the event of any Underwritten Offering (which shall
only be undertaken at the option of the Company), if a Shelf Registration
Statement is filed pursuant to Section 3, make available prior to the filing
thereof for inspection by a representative of the holders of a majority in
aggregate principal amount of the Registrable Securities being sold, and the
Special Counsel, on the one hand, or underwriter on the other hand
(collectively, the "Inspectors"), during reasonable business hours, all
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries (collectively, the "Records"), and cause the
officers, directors and employees of the Company and its subsidiaries to
supply all relevant information as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities; provided,
however, that, as a condition to supplying such information, the Company shall
receive an agreement in writing from the Special Counsel agreeing that any
information that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Inspector (other than as to holders of Registrable
Securities) and by any holders of Registrable Securities receiving such
information, unless (i) disclosure of such information is required pursuant to
applicable law or by court or administrative order, (ii) disclosure of such
information is,
in the reasonable opinion of counsel to the Company, necessary
to avoid or correct a misstatement or omission of a material fact in the
Registration Statement, Prospectus, or any supplement or post-effective
amendment thereto or disclosure is otherwise required by law, (iii) such
information becomes generally available to the public other than as a result
of a disclosure by any Inspector or any such holder of Registrable Securities
in violation of this Section 5(m) or (iv) such information is approved for
release by the Company, in writing;
(n) use its best efforts to cause the Indenture or the trust
indenture provided for in Section 2, as the case may be, to be qualified under
the TIA not later than the effective date of such Registration Statement; and,
in connection therewith, cooperate with the Trustee under such Indenture and
the holders of the Registrable Securities to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts to
cause such Trustee to execute all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
Commission to enable the Indenture to be so qualified in a timely manner;
(o) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5,
references to a Shelf Registration Statement, including a Shelf Registration
Statement filed pursuant to Section 3, shall be deemed to include any
Registration Statement, filed pursuant to Section 2, which covers, for the
period set forth therein, resales of Exchange Securities held by Restricted
Persons as provided in Section 2, and, in connection with such resales such
Restricted Persons shall be entitled to exercise all rights, receive all
notices and copies of documents, and otherwise receive all benefits afforded
to sellers or holders of Registrable Securities under this Section 5 in
connection with a Shelf Registration Statement. Without limiting the
generality of the foregoing, the Company agrees to fulfill its obligations set
forth in Sections 5(a), (b), (c), (d), (e), (f), (h), (i), (l), and (m) with
respect
to any such Registration Statement filed pursuant to Section 2 insofar
as it covers such resales.
The Company may require each seller of Registrable
Securities as to which any registration is being effected, as a condition
thereto, to furnish to the Company such information regarding the holder and
the distribution of such Registrable Securities as the Company may, from time
to time, request in writing, including without limitation stating that (i) it
is not an Affiliate of the Company, (ii) the amount of Registrable Securities
held by such holder prior to the Exchange Offer, (iii) the amount of
Registrable Securities owned by such holder to be exchanged in the Exchange
Offer and representing that such holder is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued, and
(iv) it is acquiring the Exchange Securities in its ordinary course of
business and to covenant and agree to promptly notify the Company if any such
information so provided by such seller ceases to be true and correct and will
promptly thereafter furnish the Company with corrected information. The
Company may exclude from such registration the Registrable Securities of any
Person who fails to furnish such information within a reasonable time after
receiving such request.
Each holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such holder shall forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such holder is advised in writing
(the "Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto and,
if so directed by the Company, such holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then
in such holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice, or certify in
writing as to the destruction thereof. In the event the Company shall give any
such notice, the length of the
Effective Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) or (y) the Advice.
6. Delivery of Prospectus; Notification Upon Resale. The
Initial Purchaser acknowledges that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its
own account in exchange for Registrable Securities pursuant to the Exchange
Offer must deliver a prospectus in connection with any resale of such Resale
Securities. By so acknowledging, such Initial Purchaser shall not be deemed to
admit that, by delivering a prospectus, it is an underwriter within the
meaning of the Securities Act.
The Initial Purchaser shall notify the Company promptly upon
the completion of the resale of the Resale Securities received by such Initial
Purchaser pursuant to the Exchange Offer.
7. Registration Expenses.
The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 4; provided,
however, that the Company shall bear or reimburse the holders for the
reasonable fees and disbursements of only one counsel, the Special Counsel, in
accordance with the terms of the Purchase Agreement; provided, further,
however, that if the Company permits an Underwritten Offering, the Company
shall not be responsible for any fees and expenses of any underwriter
including any underwriting discounts and commissions or any legal fees and
expenses of counsel to the underwriters (except for the reasonable fees and
disbursements of counsel in connection with state securities or Blue Sky
qualification of any of the Registrable Securities or the Exchange
Securities).
8. Indemnification and Contribution.
(a) The Company agrees to (A) indemnify and hold harmless
each holder of Registrable Securities (including the Initial Purchaser which
holds Registrable Securities, including Resale Securities, for its own account
(each, a "Resale Initial Purchaser") and each person, if any, who controls any
such person within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee or agent of each such Person (each a
"Holder Indemnified Party") against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them are subject under
the Securities Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof,) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement covering Registrable
Securities held by such person or any Prospectus relating to any such
Registration Statement, or any amendment thereof or supplement thereto and all
documents incorporated by reference therein, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances in which
they were made, not misleading, and (B) reimburse each such Holder Indemnified
Party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or Prospectus, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written
information relating to such holder provided by such holder to the Company by
any holder specifically for use therein (collectively, the "Holder
Information"); provided, further, however, that the indemnity obligations
arising out of this Section 8 with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
Prospectus shall not inure to the benefit of any holder or any controlling
Person of such holder if such holder failed to send or deliver to the Person
asserting any such losses a copy of the final
Prospectus with or prior to the delivery of the written confirmation of the
sale of the Registrable Securities or the Exchange Securities, as the case may
be, and such final Prospectus would have cured the untrue statement or
omission giving rise to such losses. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) As a condition to the inclusion of a holder's
Registrable Securities in a Registration Statement, such holder shall agree to
(i) indemnify and hold harmless the Company and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act,
and each director, officer, employee or agent of each such person, against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them are subject under the Securities Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a Registration
Statement covering Registrable Securities held by such holder or any
Prospectus relating to any such Registration Statement or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary in order to
make the statements therein, in light of the circumstances in which they were
made, not misleading, and (ii) reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred; in each and every case under clause (i) and
(ii) above to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in such
Registration Statement or Prospectus in any amendment thereof or supplement
thereto, in reliance upon and in conformity with the Holder Information. This
indemnity agreement will be in addition to any liability which any such holder
may otherwise have. In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount
of the proceeds (net of payment of all expenses) received by such holder upon
the sale (or, in the case of Resale Securities, the
resale) of the Registrable Securities giving rise to such indemnification
obligation.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof (enclosing a copy of all papers served);
but the omission to so notify the indemnifying party (i) shall not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such omission results in the
forfeiture by the indemnifying party or material impairment of substantial
rights and defenses and (ii) shall not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligations provided in paragraph (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party. After notice from the indemnifying party to such indemnified party of
its election to so assume the defense of such claim or action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than costs of
investigation; provided that if (i) the defendants in any such action include
both the indemnified party and the indemnifying party, the indemnified party
shall have received the written opinion of counsel reasonably acceptable to
the indemnifying party that representation of both parties by the same counsel
would be inappropriate due to actual or likely conflicts of interest between
them, or (ii) the indemnifying party shall not have employed counsel for the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action, then the indemnified party or
parties shall have the right to select one firm of separate counsel to assert
any separate legal defenses and to otherwise defend such action
on behalf of such indemnified party or parties. No indemnifying party shall be
liable for any settlement of any action or claim for monetary damages which an
indemnified party may effect without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in Section 8(a) or
(b) hereof is for any reason, other than as specified in such provisions,
unavailable to or insufficient to hold harmless an indemnified party, then
each indemnifying party shall contribute to the aggregate losses, claims,
damages or liabilities (or actions in respect thereof) referred to in Section
8(a) or (b) hereof in such proportion as is appropriate to reflect the
relative fault and benefits to the Company on the one hand and such holders on
the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The relative fault of
the Company and such holders shall be determined by reference to, among other
things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent any untrue statement or omission. The
obligations of the holders in this Section 8(d) are several in proportion to
their respective obligations hereunder and not joint. Notwithstanding the
provisions of this Section 8(d), in no event shall any holder of Registrable
Securities be required to contribute any amount which is in excess of (i) the
aggregate principal amount of Additional Securities sold or exchanged by such
holder less (ii) the amount of any damages that such person has otherwise been
required to pay by reason of such alleged untrue statement or omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each Holder Indemnified Party shall have the same rights to
contribution as a holder, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act and each officer,
director, employee and agent of such person, shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this
Section 8(d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this Section 8(d), notify such party or parties from whom
contribution may be sought; but the omission to so notify such party or
parties (x) shall not relieve the party or parties from whom contribution may
be sought from any liability under this paragraph (d) unless and to the extent
it did not otherwise learn of such action and such omission results in the
forfeiture by the party or parties from whom contribution may be sought or
material impairment of substantial rights and defenses and (y) shall not, in
any event, relieve such party or parties from any obligations other than under
this Section 8(d).
(e) The provisions of this Section 8 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
holder of Registrable Securities, the Initial Purchaser, the Company or any of
the officers, directors or controlling persons referred to in this Section 8
and will survive the sale (or, in the case of Resale Securities, the resale)
by a holder of Registrable Securities of such Registrable Securities.
9. Underwritten Registrations (If Any). No holder may
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Company, unless such holder (a)
agrees to sell such holder's Additional Securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
10. Termination. In the event that no Additional Securities
are sold to the Initial Purchaser pursuant to the Purchase Agreement, this
Agreement shall automatically terminate, without liability on the part of any
party. Upon the fulfillment of all obligations on the part of the Company to
register the Additional Securities as set forth herein (including maintaining
the
effectiveness of any applicable Registration Statements), this Agreement
shall terminate; provided, that the provisions of Sections 7 and 8 hereof
shall survive any termination and remain in full force and effect.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, and shall not, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities herein or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of holders of at least a majority of the then outstanding
aggregate principal amount of the Registrable Securities (or, after the
consummation of any Exchange Offer in accordance with Section 2, of Exchange
Securities); provided that, with respect to any matter that directly or
indirectly affects the rights of any Restricted Person hereunder occurring
within the period in which the Initial Registration Statement is open for the
Restricted Persons, the Company shall obtain the written consent of each such
Restricted Person against which such amendment, modification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except
for the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold or
exchanged pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other holders of Registrable Securities may be
given by holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold or exchanged by such holders pursuant to
such Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provision of the immediately preceding sentence. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Resale
Initial Purchasers and that does not directly or indirectly affect the rights
of holders of Registrable Securities or Exchange Securities may be given by
each of the Resale Initial Purchasers affected thereby.
(c) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing and
delivered by hand delivery, registered first-class mail, next-day air courier
or telecopier:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance
with the provisions of this Section 11(c), which address initially
is, with respect to the Initial Purchaser, at the address set forth
in the Purchase Agreement and thereafter at the address for such
holders of Registrable Securities set forth in the Security Register
applicable to such Registrable Securities; and
(ii) if to the Company, initially at the address set forth
in the Purchase Agreement and thereafter at such other address,
notice of which is given in accordance with the provisions of this
Section 11(c).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
one business day after being timely delivered to a next-day air courier; and
when received, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including
without limitation and without the need for an express assignment or any
consent by the Company thereto, subsequent holders of Registrable Securities.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. Each of the parties hereto hereby submits
to the non-exclusive jurisdiction of the Federal and State Courts of the
Borough of Manhattan in the City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(i) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and therein. This Agreement, together with the Purchase Agreement, supersedes
all prior agreements and
understandings between the parties with respect to such subject matter.
(j) Securities Held by the Company, etc. Whenever the
consent or approval of holders of a specified percentage of principal amount
of Registrable Securities is required hereunder, Registrable Securities held
by the Company or any of its Affiliates (other than subsequent holders of
Registrable Securities if such subsequent holders are deemed to be Affiliates
solely by reason of their holdings of such Registrable Securities) shall not
be counted in determining whether such consent or approval was given by the
holders of such required percentage.
EXHIBIT 4.5
Please confirm that the foregoing correctly sets forth this
agreement between the Company and you.
Very truly yours,
SALTON SEA FUNDING CORPORATION
By: /s/ John G. Sylvia
----------------------------------
Name: John G. Sylvia
Title: Senior Vice President
Accepted in New York, New York
June 20, 1996
CS FIRST BOSTON CORPORATION
By: /s/ Jonathan Bram
------------------------------
Name: Jonathan Bram
Title: Director