Exhibit 4.2
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of February 19, 1998
by and among
ESI TRACTEBEL ACQUISITION CORP.
NORTHEAST ENERGY, LP
and
Goldman, Sachs & Co.
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 19, 1998, by and among ESI Tractebel Acquisition
Corp., (the "Company"), Northeast Energy, LP, (the "Bond Guarantor") and
Goldman, Sachs & Co. ( the "Purchaser") who has agreed to purchase the Company's
7.99% Series A Secured Bonds due 2011 (the "Series A Bonds") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
February 12, 1998, (the "Purchase Agreement"), by and among the Company, the
Bond Guarantor, Northeast Energy, LLC ("NE LLC"), ESI Energy, Inc., Tractebel
Power, Inc. and the Purchaser. In order to induce the Purchaser to purchase the
Series A Bonds, each of the Company and the Bond Guarantor has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Purchaser set forth
in Section 3 of the Purchase Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them by the Indenture,
dated as of February 19, 1998, among the Company, the Bond Guarantor, NE LLC,
and State Street Bank and Trust Company in its capacity as trustee (the
"Trustee") and collateral agent (the "Collateral Agent"), relating to the Series
A Bonds and the Series B Bonds (the "Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Affiliate: As defined in Rule 144 of the Securities Act.
Bond Guarantor: The Bond Guarantor defined in the preamble hereto and
any person which becomes a guarantor of either series of Bonds, in each case
after the date hereof pursuant to the terms of the Indenture.
Bonds: Series A Bonds and Series B Bonds (including guarantees thereof
by the Bond Guarantor).
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Bonds, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Series B Bonds to be issued in the Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Series B Bonds in the same
aggregate principal amount as the aggregate principal amount of Series A Bonds
tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Company of a principal
amount of Series B Bonds (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Bonds that are tendered by such Holders in connection with such
exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchaser propose to sell
the Series A Bonds to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act and pursuant to Regulation S under
the Securities Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Default Damages: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and
the Bond Guarantor relating to (a) an offering of Series B Bonds pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted Bonds
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Securities Act.
Restricted Broker-Dealer: Any Broker-Dealer that holds Series B Bonds
that were acquired in the Exchange Offer in exchange for Series A Bonds that
such Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A Bonds acquired
directly from the Company or any of its affiliates).
Rule 144: Rule 144 promulgated under the Securities Act.
Securities Act: The Securities Act of 1933, as amended.
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Series B Bonds: The Company's 7.99% Series B Secured Bonds due 2011 to
be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Bonds: Each Bond, until the earliest to occur of
(a) the date on which such Bond is exchanged in the Exchange Offer and entitled
to be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Securities Act, (b) the date on which
such Bond has been disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Bond is disposed of by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein)
or (d) the date on which such Bond is distributed to the public pursuant to Rule
144 under the Securities Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Bonds (each, a
"Holder") whenever such Person owns Transfer Restricted Bonds.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Bond Guarantor shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date (the "Exchange Offer Filing Date"), but in no
event later than 90 days after the Closing Date (such 90th day being the "Filing
Deadline"), (ii) use its best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (such 180th day being the
"Effectiveness Target Date"), (iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration Statement as
may be necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the Series B Bonds to be made under the Blue Sky laws of such jurisdictions
as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Series B Bonds to be offered in exchange for
the Series A Bonds that are Transfer Restricted Bonds and to permit resales of
Series B Bonds by Broker-Dealers that tendered in the Exchange Offer Series A
Bonds that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Bonds
acquired directly from the Company or any of its Affiliates) as contemplated by
Section 3(c) below.
(b) The Company and the Bond Guarantor shall use their respective best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period
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be less than 20 Business Days. The Company and the Bond Guarantor shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Series B Bonds shall be included in the
Exchange Offer Registration Statement. The Company and the Bond Guarantor shall
use their respective best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 Business Days after the
Effectiveness Target Date.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Bonds that were
acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted Bonds
acquired directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Bonds pursuant to the Exchange Offer; however,
such Broker-Dealer may be deemed to be an "underwriter" within the meaning of
the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with its initial sale of any
Series B Bonds received by such Broker-Dealer in the Exchange Offer and that the
Prospectus contained in the Exchange Offer Registration Statement may be used to
satisfy such prospectus delivery requirement. Such "Plan of Distribution"
section shall also contain all other information with respect to such sales by
such Broker-Dealers that the Commission may require in order to permit such
sales pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Transfer Restricted Bonds held by any
such Broker-Dealer, except to the extent required by the Commission as a result
of a change in policy, rules or regulations after the date of this Agreement.
See the Shearman & Sterling no-action letter (available July 2, 1993).
To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for sales of Series B Bonds by Broker-Dealers, the
Company and the Bond Guarantor agree to use their respective best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) hereof
and in conformity with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of one year from the date on which the Exchange Offer is
Consummated, or such shorter period as will terminate when all Transfer
Restricted Bonds covered by such Registration Statement have been sold pursuant
thereto. The Company and the Bond Guarantor shall promptly provide sufficient
copies of the latest version of such Prospectus to such Broker-Dealers promptly
upon request, and in no event later than one day after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company and the Bond Guarantor have complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Bonds shall notify the Company within 20 Business Days following the
Consummation of the Exchange Offer that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Bonds acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series A
Bonds acquired directly from the Company or any of its Affiliates, then the
Company and the Bond Guarantor shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a) (ii) above,
(such
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earlier date, the "Filing Deadline"), a shelf registration statement pursuant to
Rule 415 under the Securities Act (which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement"), relating to
all Transfer Restricted Bonds, and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Filing Deadline (such 90th day the "Effectiveness Target Date").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law, then
the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above; provided that, in such event, the
Company shall remain obligated to meet the Effectiveness Target Date set forth
in clause (y).
The Company and the Bond Guarantor shall use their respective best
efforts to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Bonds by the Holders
thereof entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years (as extended pursuant to Section
6(c)(i)) following the date on which such Shelf Registration Statement first
becomes effective under the Securities Act, or such shorter period as will
terminate when all Transfer Restricted Bonds covered by such Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Bonds may include
any of its Transfer Restricted Bonds in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Company
in writing, within 20 days after receipt of a request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Securities
Act for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted Bonds
shall be entitled to Registration Default Damages pursuant to Section 5 hereof
unless and until such Holder shall have provided all such information. Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 5. REGISTRATION DEFAULT DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Target Date, (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Exchange Offer Registration Statement is first declared effective by the
Commission or (iv) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective immediately (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the Company and the
Bond Guarantor hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Bonds affected thereby liquidated damages ("Registration
Default Damages") in an amount equal to $.05 per week per
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$1,000 in principal amount of Transfer Restricted Bonds held by such Holder for
each week or portion thereof that the Registration Default continues for the
first 90-day period immediately following the occurrence of such Registration
Default. The amount of the Registration Default Damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Bonds with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Registration Default Damages
of $.50 per week per $1,000 in principal amount of Transfer Restricted Bonds;
provided that the Company and the Bond Guarantor shall in no event be required
to pay Registration Default Damages for more than one Registration Default at
any given time. Notwithstanding anything to the contrary set forth herein, (1)
upon filing of the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the Registration
Default Damages payable with respect to the Transfer Restricted Bonds as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Registration Default Damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Bonds. The Bond Guarantor unconditionally and irrevocably
guarantees the due payment of Registration Default Damages, if any, by the
Company to the Holders pursuant to this Section 5. All obligations of the
Company and the Bond Guarantor set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Bond Guarantor shall comply with all
applicable provisions of Section 6(c) below, shall use their respective best
efforts to effect such exchange and to permit the resale of Series B Bonds by
Broker-Dealers that tendered in the Exchange Offer Series A Bonds that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Bonds acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Bond
Guarantor hereby agree to seek a no-action letter or other favorable
decision from the Commission allowing the Company and the Bond
Guarantor to Consummate an Exchange Offer for such Transfer Restricted
Bonds. The Company and the Bond Guarantor hereby agree to pursue the
issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company and the Bond Guarantor
hereby agree to take all such other actions as may be requested by the
Commission or otherwise required in connection with the issuance of
such decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon
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which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Bonds (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company and the Bond Guarantor
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it is
not an Affiliate of the Company, (B) it 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 Series B Bonds to be
issued in the Exchange Offer and (C) it is acquiring the Series B Bonds
in its ordinary course of business. Each Holder using the Exchange
Offer to participate in a distribution of the Series B Bonds hereby
acknowledges and agrees that, if the resales are of Series B Bonds
obtained by such Holder in exchange for Series A Bonds acquired
directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Bond Guarantor shall provide a
supplemental letter to the Commission (A) stating that the Company and
the Bond Guarantor are registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor the Bond Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Series B Bonds to be received in the Exchange Offer and
that, to the best of the Company's and the Bond Guarantor's information
and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Bonds in its ordinary course of business and has
no arrangement or understanding with any Person to participate in the
distribution of the Series B Bonds received in the Exchange Offer and
(C) any other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause (i)
above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Bond Guarantor shall comply with all
the provisions of Section 6(c) below and shall use their respective best efforts
to effect such registration to permit the sale of the Transfer Restricted Bonds
being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company and the Bond Guarantor
will prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act, which form
shall be available for the sale of the Transfer Restricted Bonds in accordance
with the intended method or
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methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Company and the Bond
Guarantor shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Bonds
during the period required by this Agreement, the Company and the Bond
Guarantor shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use their respective best efforts to cause such amendment to
be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the selling Holders promptly and, if requested by
such Persons, confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer
Restricted Bonds for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes and (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Bonds under
state securities or Blue Sky laws, the Company and the Bond Guarantor
shall use their respective best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
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(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Bonds, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(v) furnish to the Purchaser and each selling Holder named in any
Registration Statement or Prospectus in connection with such sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of
such Registration Statement), which documents will be subject to the
review and comment of such Holders in connection with such sale, if
any, for a period of at least five Business Days, and the Company will
not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which the
selling Holders of the Transfer Restricted Bonds covered by such
Registration Statement in connection with such sale, if any, shall
reasonably object within five Business Days after the receipt thereof.
A selling Holder shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable
requirements of the Securities Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders in connection
with such sale, if any, make the Company's and the Bond Guarantor's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders may
reasonably request;
(vii) make available at reasonable times for inspection by the
selling Holders participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling Holders, all financial and other records, pertinent corporate
documents of the Company and the Bond Guarantor and cause the Company's
and the Bond Guarantor's officers, directors and employees to supply
all information reasonably requested by any such selling Holder,
attorney or accountant in connection with such Registration Statement
or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) if requested by any selling Holders in connection with
such sale, if any, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Bonds; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) furnish to each selling Holder in connection with such sale,
if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of
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each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; the Company and the Bond Guarantor hereby consent to the use
(in accordance with law) of the Prospectus and any amendment or
supplement thereto by each of the selling Holders in connection with
the offering and the sale of the Transfer Restricted Bonds covered by
the Prospectus or any amendment or supplement thereto;
(xi) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Bonds pursuant to any applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder of Transfer Restricted Bonds in
connection with any sale or resale pursuant to any applicable
Registration Statement and in such connection, the Company and the Bond
Guarantor shall:
(A) upon request of any selling Holder, furnish (or in the case
of paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each selling Holder, upon the effectiveness of the
Shelf Registration Statement or upon Consummation of the Exchange
Offer, as the case may be:
(1) (1) a certificate, dated such date, signed on
behalf of the Company and the Bond Guarantor by (x) the
President or any Vice President and (y) a principal financial
or accounting officer of the Company and such Bond Guarantor,
confirming, as of the date thereof, the matters set forth in
paragraphs (a), (f) and (g) of Section 7 of the Purchase
Agreement and such other similar matters as the selling Holders
may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer, or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Bond Guarantor covering matters similar to
those set forth in paragraph (c) of Section 7 of the Purchase
Agreement and such other matter as the selling Holders may
reasonably request, and in any event including a statement to
the effect that such counsel has participated in conferences
with officers and other representatives of the Company and the
Bond Guarantor, representatives of the independent public
accountants for the Company and the Bond Guarantor and have
considered the matters required to be stated therein and the
statements contained therein; and that such counsel advises
that, on the basis of the foregoing (relying as to materiality
to the extent such counsel deems appropriate upon the
statements of officers and other representatives of the Company
and the Bond Guarantor and without independent check or
verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in the
case of the Exchange Offer Registration Statement, as of the
date of Consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in
the case of the opinion dated the date of Consummation of the
Exchange Offer, as
10
of the date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state further
that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other
financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's, the Bond Guarantor's and the
Partnerships' independent accountants, in the customary form
and covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(e) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with clause (A) above and with any customary conditions contained
in the any agreement entered into by the Company and the Bond
Guarantor pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Bonds,
cooperate with the selling Holders and their counsel in connection with
the registration and qualification of the Transfer Restricted Bonds
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions
of the Transfer Restricted Bonds covered by the applicable Registration
Statement; provided, however, that neither the Company nor the Bond
Guarantor shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) issue, upon the request of any Holder of Series A Bonds
covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Bonds having an aggregate principal amount equal to
the aggregate principal amount of Series A Bonds surrendered to the
Company by such Holder in exchange therefor or being sold by such
Holder; such Series B Bonds to be registered in the name of such Holder
or in the name of the purchaser of such Series B Bonds , as the case
may be; in return, the Series A Bonds held by such Holder shall be
surrendered to the Company for cancellation;
(xiv) in connection with any sale of Transfer Restricted Bonds
that will result in such securities no longer being Transfer Restricted
Bonds, cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Bonds to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Bonds in such denominations
and such names as the selling Holders may request at least two Business
Days prior to such sale of Transfer Restricted Bonds;
(xv) use their respective best efforts to cause the disposition
of the Transfer Restricted Bonds covered by the Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers
thereof to consummate the disposition of such Transfer Restricted
Bonds, subject to the proviso contained in clause (xii) above;
11
(xvi) provide a CUSIP number for all Transfer Restricted Bonds
not later than the effective date of a Registration Statement covering
such Transfer Restricted Bonds and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Bonds
which are in a form eligible for deposit with the Depository Trust
Company;
(xvii) otherwise use their respective best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Securities Act);
(xviii) make appropriate officers of the Company available to the
selling Holders for meetings with prospective purchasers of the
Transfer Restricted Bonds and prepare and present to potential
investors customary "road show" material in a manner consistent with
other new issuances of other securities similar to the Transfer
Restricted Bonds; and
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof (in each case, a "Suspension
Notice"), such Holder will forthwith discontinue disposition of Transfer
Restricted Bonds pursuant to the applicable Registration Statement until (i)
such Holder's has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Bonds that was current at the
time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the date of delivery of the Recommencement Date.
12
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Bond Guarantor's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Series B Bonds to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company, the Bond Guarantor and the Holders of
Transfer Restricted Bonds; (v) all application and filing fees in connection
with listing the Series B Bonds on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the
Bond Guarantor (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its and the Bond Guarantor's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Bond Guarantor.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Bond
Guarantor will reimburse the Purchaser and the Holders of Transfer Restricted
Bonds being tendered in the Exchange Offer and/or resold pursuant to the "Plan
of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins, unless another firm shall be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Bonds for whose benefit
such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Bond Guarantor (together referred to herein as
the "Indemnifying Parties" and each individually as the "Indemnifying Party")
will, jointly and severally, indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder") against any losses, claims, damages or liabilities, joint
or several, to which such Indemnified Holder may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, preliminary prospectus or Prospectus, or any amendment
or supplement thereto, provided by or on behalf of the Company or the Bond
Guarantor to any holder or any prospective purchaser of Series B Bonds, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, and will
reimburse the Indemnified Holder for any legal or other expenses reasonably
incurred by the Indemnified Holder in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
the Company or the Bond Guarantor shall not be liable in any such case to the
extent that any such loss, claim, damage or
13
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Statement,
preliminary prospectus or Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or the Bond Guarantor by the Indemnified Holder expressly for use
therein.
(b) Each Indemnified Holder of Transfer Restricted Bonds agrees,
severally and not jointly, to indemnify and hold harmless the Indemnifying
Parties against any losses, claims, damages or liabilities to which such
Indemnifying Parties may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Registration Statement, preliminary prospectus or Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Indemnifying Parties by the Indemnified Holder
expressly for use therein; and will reimburse the Indemnifying Parties for any
legal or other expenses reasonably incurred by such Indemnifying Parties in
connection with investigating or defending any such action or claim as such
expenses are incurred. In no event shall any Indemnified Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Indemnified Holder with respect to its sale of Transfer
Restricted Bonds pursuant to a Registration Statement exceeds (i) the amount
paid by such Indemnified Holder for such Transfer Restricted Bonds and (ii) the
amount of any damages that such Indemnified Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party
14
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Indemnifying Parties on the one hand and the Indemnified Holders
on the other from their sale of Transfer Restricted Bonds. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Indemnifying Parties on the one hand and the Indemnified Holders on
the other 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 shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Parties on
the one hand or the Indemnified Holders on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Indemnifying Parties and the Indemnified Holders
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Indemnified Holder
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Transfer Restricted Bonds were offered to investors
exceeds the amount of any damages which the Indemnified Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(e) The obligations of the Indemnifying Parties under this Section 8
shall be in addition to any liability which the Indemnifying Parties may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Indemnified Holder within the meaning of the
Securities Act; and the obligations of the Indemnified Holder under this Section
8 shall be in addition to any liability which the Indemnified Holder may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Indemnifying Parties and to each person, if any, who
controls any Indemnifying Parties within the meaning of the Securities Act.
SECTION 9. RULE 144A
The Company and the Bond Guarantor hereby agree with each Holder, for
so long as any Transfer Restricted Bonds remain outstanding and during any
period in which the Company or such Bond Guarantor is not subject to Section 13
or 15(d) of the Exchange Act, to make available, upon request of any Holder of
Transfer Restricted Bonds, to any Holder or beneficial owner of Transfer
Restricted Bonds in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Bonds designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Bonds
pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Bond Guarantor acknowledge and agree
that any failure by the Company and/or the Bond Guarantor to comply with their
respective obligations under
15
Sections 3 and 4 hereof may result in material irreparable injury to the
Purchaser or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Purchaser or any Holder may obtain such
relief as may be required to specifically enforce the Company's and the Bond
Guarantor's obligations under Sections 3 and 4 hereof. The Company and the Bond
Guarantor further agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor the Bond
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor the Bond Guarantor has previously entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's and the Bond Guarantor's securities under any agreement in effect on
the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Bonds and (ii) in the case of
all other provisions hereof, the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer Restricted
Bonds (excluding Transfer Restricted Bonds held by the Company of its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer Restricted
Bonds subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the Bond
Guarantor, on the one hand, and the Purchaser, on the other hand, and shall have
the right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or the Bond Guarantor:
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
Telecopier No.:
Attention:
16
Northeast Energy, LP
c/o ESI Energy, Inc.
11760 US Highway One
North Palm Beach, FL 33408
Telecopier No.:
Attention:
With a copy to:
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, NY 10103
Telecopier No.: (212) 506-5151
Attention: Daniel A. Mathews
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Goldman, Sachs &
Co., on behalf of the Purchaser (in the form attached hereto as Exhibit A) and
shall be addressed to: Attention: Goldman, Sachs & Co., 85 Broad Street New
York, NY 10004.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Bonds; provided, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Bonds in violation of the terms hereof or of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Bonds in any manner, whether by operation of law or otherwise, such
Transfer Restricted Bonds shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Bonds such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
17
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Bonds. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ESI TRACTEBEL ACQUISITION CORP.
By: /s/ Glenn E. Smith
------------------------
Name: G1enn E. Smith
Title: Vice President
NORTHEAST ENERGY, LP
By its general Partners
ESI NORTHEAST ENERGY GP, INC.
By: /s/ Glenn E. Smith
------------------------
Name: Glenn E. Smith
Title: Vice President
TRACTEBEL NORTHEAST GENERATION GP, INC.
By: /s/ James E. Hammelman
-------------------------
Name: James E. Hammelman
Title: Vice President and
Treasurer
/s/ Goldman, Sachs & Co.
- --------------------------
Goldman, Sachs & Co.
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
From: ESI Tractebel Acquisition Corp.
7.99% secured Bonds Due 2011
Date: ______________, 1998
For your information only (NO ACTION REQUIRED):
Today, ____________, 1998, we filed an A/B Exchange Registration
Statement/a Shelf Registration Statement with the Securities and Exchange
Commission. We currently expect this registration statement to be declared
effective within __ business days of the date hereof.