EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
-------------------------------------------
SALTON SEA FUNDING CORPORATION
$285,000,000 7.475% Series F Senior Secured Bonds
Due November 30, 2018
October 13, 1998
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
In connection with the issue and sale of $285,000,000 principal amount
of 7.475% Series F Senior Secured Bonds Due November 30, 2018 (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 Credit Suisse First Boston Corporation and Goldman, Sachs & Co.
(the "Initial Purchasers") to enter into the Purchase Agree ment dated October
13, 1998 (the "Purchase Agreement") among the Company, Salton Sea Brine
Processing L.P., Salton Sea Power Generation L.P., Fish Lake Power Company,
Salton Sea Power L.L.C., CalEnergy Operating Corporation, Vulcan Power Company,
BN Geothermal, Inc., San Felipe Energy Company, Conejo Energy Company, Niguel
Energy Company, Vulcan/BN Geothermal Power Compa ny, Leathers, L.P., Elmore,
L.P., Del Ranch, L.P., CalEnergy Minerals LLC, CE Turbo LLC, Salton Sea Royalty
Company and the Initial Purchasers, the Company hereby agrees to provide the
registration rights set forth in this Registration Rights Agreement (this
"Agreement") for the benefit of the holders of the Additional Securities. The
execution of this Agreement is a condition to the purchase of the Additional
Securities under the Purchase Agreement.
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall equally apply to both the
singular and plural forms of the terms defined. As used in this Agreement, the
following terms shall have the fol lowing 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.
2
"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 pursuant 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
3
(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
Registra tion 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 (i) the First Supplemental Indenture dated as of October 18,
1995, (ii) the Second Supplemental Indenture dated as of June 20, 1996, (iii)
the Third Supplemental Indenture dated as of July 29, 1996 and (iv) the Fourth
Supplemental Indenture dated as of October 13, 1998, 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 Purchasers" shall have the meaning set forth in the first
paragraph of this Agreement.
4
"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) such
Additional Security is sold in compliance with Rule 144 or would be permitted to
be sold pursuant to Rule 144(k), (iii) such Additional Security shall have been
otherwise transferred and a new certificate therefor not bearing a
5
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) such Additional Security 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)
any Initial Purchaser or (c) any Affiliate of any Initial Purchaser (other than
Affiliates of such 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.
6
"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 LLP,
special counsel to the Initial Purchasers, 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 Chase Manhattan Bank and Trust Company, National
Association, 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.
SECTION 2. Exchange Offer.
(a) Unless the Company determines in good faith that the Exchange Offer
shall not be permissible under applicable law or Commission policy, the
7
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
8
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 date of consummation of the Exchange Offer. 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.
9
(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 to 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 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.
SECTION 3. Shelf Registration; Registrable Securities. With respect to
the Registrable Securities, if a Shelf Notice is delivered in accordance with
Section 2(b) or 2(c) of this Agreement, then the Company shall comply with the
following provisions of this Section 3:
(a) Initial Shelf Registration. The Company shall prepare and cause to
be filed with the Commission a Registration Statement for an offering to be made
on a continuous basis other than pursuant to an Underwritten Offer pursuant to
Rule 415 covering all of the Registrable 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
10
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 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 immediately preceding sentence (a
"Suspension"), such event shall not suspend, postpone or in any other manner
affect the running of the time period after which an Illiquidity Event shall be
deemed to occur and, if the filing or effectiveness of a Registration
11
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.
SECTION 4. Additional Interest for Illiquidity.
(a) The Company acknowledges and agrees that the Initial Purchasers
(and any subsequent holders of the Additional Securities) have acquired the
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
12
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 as (i) the Company may reasonably request, with reasonable prior
written notice, for use in the Shelf Registration Statement or any Prospectus
included therein to the extent the Company reasonably determines that such
information is required to be included therein by applicable law, (ii) the NASD
or the Commission may request in connection with such Shelf Registration
Statement, or (iii) is required to comply with the agreements of such holder
contained in clause (a) of Section 3 to the extent compliance thereof is
necessary for the Shelf Registration Statement to be declared effective.
13
SECTION 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 writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with
14
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);
15
(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 Underwrit ten 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 re quired 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
supple-
16
ment 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
17
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 the 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 or
the trust indenture provided for in Section 2 to be so qualified in a timely
manner;
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5, references
to a Shelf Registration Statement, including a Shelf Registration Statement
filed pursuant to Section 3, shall be deemed to include any Registration
Statement, filed pursuant to Section 2, which covers, for the period set forth
therein, resales of Exchange 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
18
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
19
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(i) or (y) the Advice.
SECTION 6. Delivery of Prospectus; Notification Upon Resale. The
Initial Purchasers acknowledge that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange 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 Purchasers shall not be deemed to
admit that, by delivering a prospectus, it is an underwriter within the meaning
of the Securities Act.
The Initial Purchasers shall notify the Company promptly upon the
completion of the resale of the Resale Securities received by such Initial
Purchasers pursuant to the Exchange Offer.
SECTION 7. Registration Expenses.
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4; provided, however,
that the Company shall bear or reimburse the holders for the reasonable fees and
disbursements of only one counsel, the Special Counsel, in accordance with the
terms of the Purchase Agreement; provided, further, however, that if the Company
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).
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to (A) indemnify and hold harmless each holder
of Registrable Securities (including any 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,
20
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 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 if the Company had previously furnished copies thereof to such holder.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) As a condition to the inclusion of a holder's Registrable
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
21
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 or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with the Holder Information. This indemnity agreement will be
in addition to any liability which any such holder may otherwise have. In no
event shall the liability of any selling holder of Registrable 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 indem nification 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
22
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 (in addition to the fees and expenses of
local counsel) to assert any separate legal defenses and to otherwise defend
such action on behalf of such indemnified party or parties. No indemnifying
party shall be liable for any settlement of any action or claim for monetary
damages which an indemnified party may effect without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
(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,
23
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 Purchasers, the Company or any of the
officers, directors or controlling persons referred to in this Section 8 and
will survive the sale (or, in the case of Resale Securities, the resale) by a
holder of Registrable Securities of such Registrable Securities.
SECTION 9. Underwritten Registrations (If Any). No holder may
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Company, unless such holder (a)
agrees to sell such holder's 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.
SECTION 10. Termination. In the event that no Additional Securities
are sold to the Initial Purchasers pursuant to the Purchase Agreement, this
Agreement shall automatically terminate, without liability on the part of any
party. Upon the fulfillment of all obligations on the part of the Company to
register the 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.
SECTION 11. Miscellaneous.
24
(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 provisions 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:
25
(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 Purchasers, 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 hereto,
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.
26
(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.
27
Please confirm that the foregoing correctly sets forth this agreement
between the Company and you.
Very truly yours,
SALTON SEA FUNDING CORPORATION
By: /s/ Steven A. McArthur
------------------------------------
Name: Steven A. McArthur
Title: Executive Vice President and
General Counsel
Accepted in New York, New York
October 13, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Jonathan Bram
------------------------------------
Name: Jonathan Bram
Title: Managing Director
Signature Page to Registration Rights Agreement