REGISTRATION RIGHTS AGREEMENT dated as of July 1, 2005 among EL PASO CORPORATION and CREDIT SUISSE FIRST BOSTON LLC
EXECUTION
COPY
dated
as
of
July
1,
2005
among
EL
PASO CORPORATION
and
CREDIT
SUISSE FIRST BOSTON LLC
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”)
is made and entered into as of July
1,
2005, by and among EL PASO CORPORATION (the “Company”),
a corporation duly organized and existing under the laws of the State
of
Delaware, and CREDIT SUISSE FIRST BOSTON LLC, (the “Remarketing
Agent”).
The
Company issued $575,000,000 aggregate principal amount of 6.14% senior
notes due
2007 (the “Notes”)
in connection with its issuance of 9.00% equity security units (the
“ESUs”)
in June 2002. Pursuant to the remarketing agreement in connection therewith
between the Company and Credit Suisse First Boston LLC (formerly, Credit
Suisse
First Boston Corporation) dated as of June 26, 2002, as supplemented
by the
supplemental remarketing agreement dated as of June
28,
2005 between the Company and the Remarketing Agent (the “Supplemental
Remarketing Agreement”
and collectively, the “Remarketing
Agreement”),
the Remarketing Agent agreed to use its commercially reasonable best
efforts to
remarket $ 272,102,000 aggregate principal amount of the Notes (the
“Securities”)
on behalf of the holders of the ESUs and any holders of the Notes that
have
separated from the ESUs who elect to participate in the remarketing.
The
Securities will be issued pursuant to an Indenture, dated as of May 10,
1999
between the Company and HSBC Bank USA, National Association, as successor
trustee to JPMorgan Chase Bank (formerly, The Chase Manhattan Bank) (the
“Trustee”),
as supplemented by the Eighth Supplemental Indenture dated as of June
26, 2002
between the Company and HSBC Bank USA, National Association, as successor
trustee to JPMorgan Chase Bank and the Ninth Supplemental Indenture dated
as
of July
1,
2005 between the Company and HSBC Bank USA, National Association, as
trustee
(the “Indenture”).
In
order to induce the Remarketing Agent to enter into the Remarketing Agreement,
the Company has agreed to provide to the Remarketing Agent and its direct
and
indirect transferees the registration rights with respect to the Securities
set
forth in this Agreement. The execution of this Agreement is a condition
to the
closing under the Remarketing Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1.
Definitions.
As
used in this Agreement, the following capitalized defined terms shall
have the
following meanings:
“1933
Act”
shall mean the Securities Act of 1933, as amended from time to
time.
“1934
Act”
shall mean the Securities Exchange Act of 1934, as amended from time
to
time.
“Agreement”
shall have the meaning set forth in the preamble.
“Business
Day”
shall have the meaning set forth in Rule 13e-4(a)(3) under the 1934
Act.
“Closing
Date”
shall mean the Closing Date as defined in the Remarketing
Agreement.
“Company” shall
have the meaning set forth in the preamble and shall also include the
Company’s
successors.
“Exchange
Dates”
shall have the meaning set forth in Section 2(a)(ii).
“Exchange
Offer”
shall mean the exchange offer by the Company of Exchange Securities for
all
Securities that are Registrable Securities pursuant to Section 2(a)
hereof.
“Exchange
Offer Registration”
shall mean a registration under the 1933 Act effected pursuant to Section
2(a)
hereof.
“Exchange
Offer Registration Statement”
shall mean a registration statement on Form S-4 (or, if applicable, on
another
appropriate form) relating to an offering of Exchange Securities pursuant
to an
Exchange Offer and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits
thereto and all material incorporated by reference therein.
“Exchange
Securities”
shall mean any securities issued by the Company to be offered to Holders
in
exchange for Securities (pursuant to the Exchange Offer or otherwise)
pursuant
to an Exchange Offer Registration Statement containing terms identical
in all
material respects to the Securities for which they are exchanged (except
that
(i) interest thereon shall accrue from the last date on which interest
was paid
on the Securities or, if no such interest has been paid, from the date
of
issuance of the Securities), (ii) the Exchange Securities will not contain
the
legend appearing on the face of the Securities in the form recited in
the
Indenture and will not contain terms with respect to transfer restrictions
and
(iii) the Exchange Securities will not contain terms with respect to
the payment
of liquidated damages.
“Holder”
shall mean the Remarketing Agent, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under
the
Indenture; provided
that for purposes of Sections 4 and 5 of this Agreement, the term “Holder” shall
include Participating Broker-Dealers (as defined in Section 4(a)).
“Indemnified
Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall have the meaning set forth in Section 5(c).
“Indenture”
shall have the meaning set forth in the preamble.
“Liquidated
Damages”
shall have the meaning set forth in Section 2(e).
“Majority
Holders”
shall mean the Holders of a majority of the aggregate principal amount
of
outstanding Registrable Securities; provided
that, for purposes of Section 6(b), whenever the consent or approval
of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as
such
term is defined in Rule 405 under the 0000 Xxx) (other than the Remarketing
Agent or subsequent Holders of Registrable Securities if such subsequent
Holders
are deemed to be such affiliates solely by reason of their holding of
such
Registrable Securities) shall not be considered outstanding and shall
not be
counted in determining whether such consent or approval was given by
the Holders
of such required percentage or amount.
“Participant”
shall have the meaning set forth in Section 5(a).
“Participating
Broker-Dealer”
shall have the meaning set forth in Section 4(a) hereof.
“Person”
shall mean an individual, partnership, limited liability company, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
“Private
Exchange”
shall have the meaning set forth in Section 2(a).
“Private
Exchange Securities”
shall have the meaning set forth in Section 2(a).
“Prospectus”
shall mean the prospectus included in a Registration Statement, including
any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including a prospectus supplement with respect
to the
terms of the offering of any portion of the Registrable Securities covered
by a
Shelf Registration Statement, and by all other amendments and supplements
to
such prospectus, and in each case including all material incorporated
by
reference therein.
“Registrable
Securities”
shall mean the Securities and the Private Exchange Securities; provided,
however,
that the Securities and the Private Exchange Securities shall cease to
be
Registrable Securities when (i) a Registration Statement with respect
to such
Securities or such Private Exchange Securities shall have been declared
effective under the 1933 Act and such Securities or such Private Exchange
Securities shall have been exchanged for Exchange Securities pursuant
to an
Exchange Offer Registration Statement or disposed of pursuant to a Shelf
Registration Statement, as applicable, (ii) such Securities or such Private
Exchange Securities have been sold to the public pursuant to Rule 144
under the
1933 Act or are saleable pursuant to Rule 144(k) (or any similar provision
then
in force, but not Rule 144A) under the 1933 Act or (iii) such Securities
or such
Private Exchange Securities shall have ceased to be outstanding.
“Registration
Default”
shall have the meaning set forth in Section 2(e).
“Registration
Expenses”
shall mean any and all expenses incident to performance of or compliance
by the
Company with this Agreement, including without limitation: (i) all SEC,
stock
exchange or National Association of Securities Dealers, Inc. registration
and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue
sky qualification of any of the Exchange Securities or Registrable Securities),
(iii) all expenses of any Person in preparing or assisting in preparing,
word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance
of
and compliance with this Agreement, (iv) all rating agency fees, (v)
all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee
and
its counsel, (vii) the fees and disbursements of counsel for the Company
and, in
the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be
selected by
the Majority Holders and which counsel may also be counsel for the Remarketing
Agent) and (viii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits
or
“cold comfort” letters required by or incident to such performance and
compliance, but excluding fees of counsel to the Underwriters (other
than the
fees and expenses set forth in clause (ii) above) and the Holders relating
to
the sale or disposition of Registrable Securities by a Holder.
“Registration
Statement”
shall mean any registration statement of the Company that covers any
of the
Exchange Securities or the Registrable Securities pursuant to the provisions
of
this Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Remarketing
Agent”
shall have the meaning set forth in the preamble.
“Remarketing
Agreement”
shall have the meaning set forth in the preamble.
“SEC”
shall mean the Securities and Exchange Commission.
“Securities”
shall have the meaning set forth in the preamble.
“Shelf
Registration”
shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf
Registration Statement”
shall mean a “shelf” registration statement of the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the
Registrable
Securities (but no other securities unless approved by the Holders of
a majority
of the aggregate principal amount of outstanding Registrable Securities
that are
covered by such Shelf Registration Statement) on an appropriate form
under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
“TIA”
shall have the meaning set forth in Section 3(1) hereof.
“Trustee”
shall have the meaning set forth in the preamble.
“Underwriter”
shall have the meaning set forth in Section 3 hereof.
“Underwritten
Registration or Underwritten Offering” shall
mean a registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2.
Registration
under
the 0000 Xxx.
(a) To
the extent not prohibited by any applicable law or applicable interpretation
of
the staff of the SEC, the Company shall (1) cause to be filed an Exchange
Offer
Registration Statement within 120 days following the Closing Date covering
the
offer by the Company to the Holders to exchange all of the Registrable
Securities for an equal aggregate principal amount of Exchange Securities
and
(2) use its reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective within 210 days following the Closing Date.
The
Company shall use its reasonable best efforts to have the Exchange Offer
Registration Statement remain effective until the closing of the Exchange
Offer.
The Company shall commence the Exchange Offer promptly after the Exchange
Offer
Registration Statement has been declared effective by the SEC and use
its
reasonable best efforts to have the Exchange Offer consummated not later
than 30
Business Days after such effective date. The Company shall commence the
Exchange
Offer by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures
as are
required by applicable law:
(i)
that the Exchange Offer is being made pursuant to this Agreement and
that all
Registrable Securities validly tendered will be accepted for
exchange;
(ii)
the dates of acceptance for exchange (which shall be a period of at least
20
Business Days from the date such notice is mailed) (the “Exchange
Dates”);
(iii)
that any
Registrable Security not tendered will remain outstanding and continue
to accrue
interest, but will not retain any rights under this Agreement;
(iv)
that Holders
electing to have a Registrable Security exchanged pursuant to the Exchange
Offer
will be required to surrender such Registrable Security, together with
the
enclosed letters of transmittal, to the institution and at the address
specified
in the notice prior to the close of business on the last Exchange Date;
and
(v)
that Holders
will be entitled to withdraw their election, not later than the close
of
business on the last Exchange Date, by sending to the institution and
at the
address (located in the Borough of Manhattan, The City of New York) specified
in
the notice, a telegram, telex, facsimile transmission or letter setting
forth
the name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
his
election to have such Registrable Securities exchanged.
If,
upon
consummation of the Exchange Offer, the Remarketing Agent holds Securities
acquired by it as part of its initial distribution, the Company, simultaneously
with the delivery of the Exchange Securities pursuant to the Exchange
Offer,
shall issue and deliver to the Remarketing Agent upon the written request
of the
Remarketing Agent, in exchange (the “Private
Exchange”)
for the
Securities held by the Remarketing Agent, a like principal amount of
debt
securities of the Company issued under the Indenture and identical in
all
material respects (including the existence of restrictions on transfer
under the
1933 Act and the securities laws of the several states of the United
States, but
excluding provisions relating to the matters described in Section 2(e)
hereof)
to the Securities (the “Private
Exchange Securities”).
The interest on
the Private Exchange Securities shall accrue from the last date on which
interest was paid on the Securities or, if no such interest has been
paid, from
the date of issuance of the Securities.
As
soon as practicable after the last Exchange Date or the close of the
Private
Exchange, as the case may be, the Company shall:
(A) accept
for exchange Registrable Securities or portions thereof tendered and
not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
and
(B) deliver,
or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Company
and
issue, and cause the Trustee to promptly authenticate and mail to each
Holder,
an Exchange Security or Private Exchange Securities equal in aggregate
principal
amount to the aggregate principal amount of the Registrable Securities
surrendered by such Holder.
The
Company shall use its reasonable best efforts to complete the Exchange
Offer as
provided above and shall comply with the applicable requirements of the
1933
Act, the 1934 Act and other applicable laws and regulations in connection
with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or
any
applicable interpretation of the staff of the SEC. The Company shall
inform the
Remarketing Agent of the names and addresses of the Holders to whom the
Exchange
Offer is made, and the Remarketing Agent shall have the right, subject
to
applicable law, to contact such Holders and otherwise facilitate the
tender of
Registrable Securities in the Exchange Offer.
If,
during the period the Exchange Offer Registration Statement is effective,
an
event occurs which makes any statement made in such Exchange Offer Registration
Statement or the related Prospectus untrue in any material respect or
which
requires the making of any changes in such Exchange Offer Registration
Statement
in order to make the statements therein not misleading or in such Prospectus
in
order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, the Company shall use its reasonable
best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to the Exchange Offer Registration Statement or 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 any untrue statement of
a material
fact or omit to state a material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made, not misleading.
The Company agrees to notify the Holders to suspend the exchange of the
Registrable Securities as promptly as practicable after the occurrence
of such
an event, and the Holders hereby agree to suspend such exchange until
the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission.
(b) If
(i) the Company determines that the Exchange Offer Registration provided
for in
Section 2(a) above is not available or may not be consummated as soon
as
practicable after the last Exchange Date because it would violate applicable
law
or the applicable interpretations of the staff of the SEC, (ii) the Exchange
Offer is not for any other reason consummated within 260 days following
the
Closing Date, (iii) any Holder (other than a Participating Broker-Dealer)
is not
eligible to participate in the Exchange Offer or, in the case of any
Holder
(other than a Participating Broker-Dealer) that participates in the Exchange
Offer, such Holder does not receive freely tradeable Exchange Securities
on the
date of the exchange or (iv) in the written opinion of counsel for the
Holders a
Shelf Registration Statement must be filed and a Prospectus must be delivered
by
any Holder in connection with any reoffering or resale of Registrable
Securities, the Company shall (x) file with the SEC within 75 days following
such determination, date or notice of such opinion of counsel is given
to the
Company a Shelf Registration Statement providing for the resale by the
Holders
(other than those who fail to comply with the paragraph immediately following
clause (p) of Section 3) of all of their Registrable Securities and (y)
use its
reasonable best efforts to cause such Shelf Registration Statement to
become
effective within 60 days of the filing of such Shelf Registration Statement.
If
the Company is required to file a Shelf Registration Statement solely
as a
result of the matters referred to in clause (iv) of the preceding sentence,
the
Company shall use its reasonable best efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant
to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to reoffers and resales of
Registrable Securities held by the Holders who must deliver the related
Prospectus. The Company agrees to use its reasonable best efforts to
keep the
Shelf Registration Statement continuously effective until the expiration
of the
period referred to in Rule 144(k) of the 1933 Act with respect to the
Registrable Securities or such shorter period that will terminate when
all of
the Registrable Securities covered by the Shelf Registration Statement
have been
sold pursuant to the Shelf Registration Statement or cease to be Registrable
Securities within the meaning of this Agreement. The Company further
agrees to
supplement or amend the Shelf Registration Statement if required by the
rules,
regulations or instructions applicable to the registration form used
by the
Company for such Shelf Registration Statement or by the 1933 Act or by
any other
rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder,
and
to use its reasonable best efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon
as
thereafter practicable. The Company agrees to furnish to the Holders
of
Registrable Securities copies of any such supplement or amendment promptly
after
its being used or filed with the SEC.
(c) The
Company shall pay all Registration Expenses in connection with the registration
pursuant to Section 2(a) or Section 2(b).
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof
or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed
to
have become effective unless it has been declared effective by the SEC;
provided,
however,
that, if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with
by any
stop order, injunction or other order or requirement of the SEC or any
other
governmental agency or court, such Registration Statement will be deemed
not to
have become effective during the period of such interference until the
offering
of Registrable Securities pursuant to such Registration Statement may
legally
resume.
(e) The
Company and the
Remarketing Agent agree that the Holders will suffer damages if the Company
fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof
and
that it would not be feasible to ascertain the extent of such damages
with
precision. Accordingly, the Company agrees that if:
(i)
the Exchange Offer Registration Statement is not filed with the SEC on
or prior
to the 120th
day following
the Closing Date,
(ii)
the Exchange
Offer Registration Statement is not declared effective on or prior to
the 210th
day following the Closing Date,
(iii)
the Exchange
Offer is not completed on or prior to the 260th day following the Closing
Date,
or
(iv)
the Shelf
Registration Statement is required to be filed but is not filed or declared
effective within the time period set forth herein or is declared effective
but
thereafter ceases to be effective or usable prior to the expiration of
the
period referred to in Rule 144(k) with respect to the Registrable Securities
other than after the Registrable Securities have been disposed of under
the
Shelf Registration Statement or cease to be Registrable Securities, without
being succeeded within two Business Days by a post-effective amendment
which
cures the failure and that is itself immediately declared effective,
(each
such event
referred to in clauses (i) through (iv) a “Registration
Default”),
liquidated
damages (“Liquidated
Damages”)
will accrue on
the affected Registrable Securities and the affected Exchange Securities,
as
applicable. The rate of Liquidated Damages will be 0.25% per annum of
the
principal amount of Registrable Securities held by such Holder for the
first
90-day period immediately following the occurrence of a Registration
Default,
increasing by 0.25% per annum with respect to each subsequent 90-day
period, up
to a maximum of 1.00% per annum, from and including the date on which
any such
Registration Default shall occur to, but excluding, the earlier of (1)
the date
on which all Registration Defaults have been cured or (2) the date on
which all
the Registrable Securities and Exchange Securities otherwise become freely
transferable by Holders other than affiliates of the Company without
further
registration under the 1933 Act.
Notwithstanding
the foregoing, (1) the amount of Liquidated Damages payable shall not
increase
because more than one Registration Default has occurred and is pending
and (2) a
Holder of Registrable Securities or Exchange Securities who is not entitled
to
the benefits of the Shelf Registration Statement (i.e., such Holder has
not
elected to including information) shall not be entitled to Liquidated
Damages
with respect to a Registration Default that pertains to the Shelf Registration
Statement.
(f) The
Company shall notify the Trustee within one Business Day after each date
on
which an event occurs in respect of which Liquidated Damages are required
to be
paid. Any amounts of Liquidated Damages due pursuant to this Section
2 will be
payable in addition to any other interest payable from time to time with
respect
to the Registrable Securities in cash semi-annually on the interest payment
dates specified in the Indenture (to the holders of record as specified
in the
Indenture), commencing with the first such interest payment date occurring
after
any such Liquidated Damages commence to accrue. The amount of Liquidated
Damages
will be determined in a manner consistent with the calculation of interest
under
the Indenture.
(g) Without
limiting the remedies available to the Holders, the Company acknowledges
that
any failure by the Company to comply with its obligations under Section
2(a) and
Section 2(b) hereof may result in material irreparable injury to 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 Remarketing Agent or any Holder may obtain such relief as
may be
required to specifically enforce the Company’s obligations under Section 2(a)
and Section 2(b) hereof.
3.
Registration
Procedures.
In
connection with the obligations of the Company with respect to the Registration
Statements pursuant to Section 2(a) and Section 2(b) hereof, the Company
shall
as expeditiously as possible (provided, however, that the Company shall
not be
required to take actions more promptly than required by Sections 2(a)
and
2(b)):
(a) prepare
and file with the SEC a Registration Statement on the appropriate form
under the
1933 Act, which form shall (x) be selected by the Company, (y) in the
case of a
Shelf Registration, be available for the sale of the Registrable Securities
by
the selling Holders thereof and (z) comply as to form in all material
respects
with the applicable requirements of the 1933 Act and rules and regulations
promulgated thereunder and include all financial statements required
by the SEC
to be filed therewith, and use reasonable best efforts to cause such
Registration Statement to become effective and remain effective in accordance
with Section 2 hereof;
(b) prepare
and file with the SEC such amendments and post-effective amendments to
each
Registration Statement as may be necessary to keep such Registration
Statement
effective for the applicable period and cause each Prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be
filed
pursuant to Rule 424 under the 1933 Act; and keep each Prospectus current
during
the period described under Section 4(3) and Rule 174 under the 1933 Act
that is
applicable to transactions by brokers or dealers with respect to the
Registrable
Securities or Exchange Securities;
(c) in
the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Remarketing Agent and to counsel for the
Holders
and to each Underwriter of an Underwritten Offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including
each
preliminary Prospectus and any amendment or supplement thereto and such
other
documents as such Holder or Underwriter may reasonably request, in order
to
facilitate the public sale or other disposition of the Registrable Securities;
and, subject to Section 3(i), the Company consents to the use of such
Prospectus
and any amendment or supplement thereto in accordance with applicable
law by
each of the selling Holders of Registrable Securities and any such Underwriters
in connection with the offering and sale of the Registrable Securities
covered
by and in the manner described in such Prospectus or any amendment or
supplement
thereto in accordance with applicable law;
(d) use
its reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or blue sky laws of such jurisdictions
as
any Holder of Registrable Securities covered by a Registration Statement
shall
reasonably request in writing by the time the applicable Registration
Statement
is declared effective by the SEC, and to cooperate with such Holders
in
connection with any filings required to be made with the National Association
of
Securities Dealers, Inc. and do any and all other acts and things which
may be
reasonably necessary or advisable to enable such Holder to consummate
the
disposition in each such jurisdiction of such Registrable Securities
owned by
such Holder; provided,
however,
that the Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise
be
required to qualify but for this Section 3(d), (ii) file any general
consent to
service of process or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject;
(e) in
the case of a
Shelf Registration, notify each Holder of Registrable Securities, counsel
for
the Holders and counsel for the Remarketing Agent (or, if applicable,
separate
counsel for the Holders) promptly and, if requested by any such Holder
or
counsel, confirm such advice in writing, (i) when a Registration Statement
has
become effective and when any post-effective amendment thereto has been
filed
and becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and
Prospectus or for additional information after the Registration Statement
has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv)
if,
between the effective date of a Registration Statement and the closing
of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
receives
any notification with respect to the suspension of the qualification
of the
Registrable Securities for sale in any jurisdiction or the initiation
of any
proceeding for such purpose, (v) of the happening of any event during
the period
a Shelf Registration Statement is effective which makes any statement
made in
such Shelf Registration Statement or the related Prospectus untrue in
any
material respect or which requires the making of any changes in such
Registration Statement in order to make the statements therein not misleading
or
in such Prospectus in order to make the statements therein, in the light
of the
circumstances under which they were made, not misleading and (vi) of
any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) use
its reasonable
best efforts to obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such
order;
(g) in
the case of a
Shelf Registration, furnish to each Holder of Registrable Securities,
without
charge, at least one conformed copy of each Registration Statement and
any
post-effective amendment thereto (without documents incorporated therein
by
reference or exhibits thereto, unless requested in writing);
(h) in
the case of a
Shelf Registration, cooperate with the selling Holders of Registrable
Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions
of the
Indenture) and registered in such names as the selling Holders may reasonably
request at least two Business Days prior to the closing of any sale of
Registrable Securities;
(i) in
the case of a
Shelf Registration, upon the occurrence of any event contemplated by
Section
3(e)(v) hereof, use its reasonable best efforts to prepare and file with
the SEC
a supplement or post-effective amendment to a Registration Statement
or 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 any untrue
statement of a material fact or omit to state a material fact necessary
to make
the statements therein, in the light of the circumstances under which
they were
made, not misleading. The Company agrees to notify the Holders to suspend
use of
the Prospectus as promptly as practicable after the occurrence of such
an event,
and the Holders hereby agree to suspend use of the Prospectus until the
Company
has amended or supplemented the Prospectus to correct such misstatement
or
omission and has furnished copies of the amended or supplemented Prospectus
to
the Holders or until the Company notifies the Holders that the sale of
the
Registrable Securities may be resumed;
(j) a
reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment
to a Registration Statement or amendment or supplement to a Prospectus,
or any
document which is to be incorporated by reference into a Registration
Statement
or Prospectus after the initial filing of a Registration Statement, provide
copies of such document to the Remarketing Agent and their counsel (and,
in the
case of a Shelf Registration Statement, the Holders and their counsel)
and make
such of the representatives of the Company as shall be reasonably requested
by
the Remarketing Agent or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) available for discussion of
such
document, and shall not at any time file or make any amendment to the
Shelf
Registration Statement, any Prospectus or any amendment of or supplement
to a
Shelf Registration Statement or a Prospectus or any document which is
to be
incorporated by reference into a Registration Statement or a Prospectus,
of
which the Remarketing Agent and their counsel (and, in the case of a
Shelf
Registration Statement, the Holders or their counsel) shall not have
previously
been advised and furnished a copy or to which the Remarketing Agent or
their
counsel (and, in the case of a Shelf Registration Statement, the Holders
or
their counsel) shall reasonably object;
(k) obtain
a CUSIP
number for all Exchange Securities or Registrable Securities, as the
case may
be, not later than the effective date of the applicable Registration
Statement;
(l) cause
the Ninth
Supplemental Indenture to be qualified under the Trust Indenture Act
of 1939, as
amended (the “TIA”), in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and cooperate
with the
Trustee and the Holders 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 commercially reasonable best efforts to
cause the
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 SEC to enable
the
Indenture to be so qualified in a timely manner;
(m) in
the case of a
Shelf Registration, make available for inspection by a representative
of the
Holders of the Registrable Securities, any Underwriter participating
in any
disposition pursuant to such Shelf Registration Statement, and attorneys
and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all relevant financial and other records, pertinent documents
and
properties of the Company, and cause the respective officers, directors
and
employees of the Company to supply all information reasonably requested
by any
such representative, Underwriter, attorney or accountant in connection
with a
Shelf Registration Statement, in each case that would customarily be
reviewed or
examined in connection with “due diligence” review of the Company;
(n) use
its reasonable
best efforts to cause the Exchange Securities to continue to be rated
by two
nationally recognized statistical rating organizations (as such term
is defined
in Rule 436(g)(2) under the 1933 Act), if the Registrable Securities
have been
rated prior to the initial sale of such Registrable Securities;
(o) if
reasonably
requested by any Holder of Registrable Securities covered by a Registration
Statement, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder
reasonably
requests to be included therein and (ii) make all required filings of
such
Prospectus supplement or such post-effective amendment as soon as reasonably
practicable after the Company has received notification of the matters
to be
incorporated in such filing; and
(p) in
the case of a
Shelf Registration, enter into such customary agreements and take all
such other
actions in connection therewith (including those reasonably requested
by the
Holders of a majority of the Registrable Securities being sold thereunder)
in
order to expedite or facilitate the disposition of such Registrable Securities
thereunder including, but not limited to, pursuant to an Underwritten
Offering
and in such connection, (i) to the extent possible, make such representations
and warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its subsidiaries,
the
Registration Statement, Prospectus and documents incorporated by reference
or
deemed incorporated by reference, if any, in each case, in form, substance
and
scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested, (ii) obtain opinions
of
counsel to the Company (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders of a majority
in
principal amount of the Registrable Securities being sold under such
Shelf
Registration Statement, such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain “cold comfort” letters from the independent certified
public accountants of the Company (and, if necessary, any other certified
public
accountant of any subsidiary of the Company, or of any business acquired
by the
Company for which financial statements and financial data are or are
required to
be included in the Registration Statement) addressed to each selling
Holder and
Underwriter of Registrable Securities, such letters to be in customary
form and
covering matters of the type customarily covered in “cold comfort” letters in
connection with underwritten offerings, and (iv) deliver such documents
and
certificates as may be reasonably requested by the Holders of a majority
in
principal amount of the Registrable Securities being sold under such
Shelf
Registration Statement or by the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity
of the
representations and warranties of the Company made pursuant to clause
(i) above
and to evidence compliance with any customary conditions contained in
an
underwriting agreement.
In
the case of a Shelf Registration Statement, the Company may require each
Holder
of Registrable Securities to furnish to the Company such information
regarding
the Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in
writing.
No Holder of Registrable Securities may include its Registrable Securities
in
such Shelf Registration Statement unless and until such Holder furnishes
such
information to the Company. Each Holder including Registrable Securities
in a
Shelf Registration Statement shall agree to furnish promptly to the Company
all
information regarding such Holder and the proposed distribution by such
Holder
of such Registrable Securities required to make the information previously
furnished to the Company by such Holder not materially misleading.
In
connection with an Exchange Offer Registration, each Holder exchanging
Securities for Exchange Securities shall be required to represent that
(i) the
Exchange Securities are being obtained in the ordinary course of business
of the
Person receiving such Exchange Securities, whether or not such Person
is a
Holder, (ii) neither such Holder nor any such other Person has an arrangement
or
understanding with any Person to participate in the distribution of Securities
or Exchange Securities, (iii) other than as set forth in Section 4, if
the
Holder is not a broker-dealer, or is a broker-dealer but will not receive
Exchange Securities for its own account in exchange for Securities, neither
the
Holder nor any such other Person is engaged in or intends to participate
in a
distribution of the Exchange Securities and (iv) neither the Holder nor
any such
other Person is an “affiliate” of the Company within the meaning of Rule 405
under the 1933 Act or, if such Person is an “affiliate,” that such Holder will
comply with the registration and prospectus delivery requirements of
the 1933
Act to the extent applicable.
In
the case of a Shelf Registration Statement, each Holder agrees that,
upon
receipt of any notice from the Company of the happening of any event
of the kind
described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement
until
such Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the Company,
such
Holder will destroy or 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.
If
the Company shall give any such notice to suspend the disposition of
Registrable
Securities pursuant to a Registration Statement, the Company shall extend
the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from
and
including the date of the giving of such notice to and including the
date when
the Holders shall have received copies of the supplemented or amended
Prospectus
necessary to resume such dispositions. The Company may give such notice
so long
as there are no more than 90 days during any 365 day period in which
such
suspensions are in effect.
The
Holders of Registrable Securities covered by a Shelf Registration Statement
who
desire to do so may sell such Registrable Securities in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or
investment
bankers and manager or managers (the “Underwriters”)
that will administer the offering will be selected by the Majority Holders
of
the Registrable Securities included in such offering, provided
that such Underwriters shall be reasonably acceptable to the
Company.
4.
Participation
of
Broker-Dealers in Exchange Offer.
(a)
The parties hereto understand that the staff of the SEC has taken the
position
that any broker-dealer that receives Exchange Securities for its own
account in
the Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities
(a
“Participating
Broker-Dealer”), may be deemed to be an “underwriter” within the meaning of the
1933 Act and must deliver a prospectus meeting the requirements of the
1933 Act
in connection with any resale of such Exchange Securities.
The
Company understands that it is currently the staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes
a
plan of distribution containing a statement to the above effect and the
means by
which Participating Broker-Dealers may resell the Exchange Securities,
without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under
the 1933
Act in connection with resales of Exchange Securities for their own accounts,
so
long as the Prospectus otherwise meets the requirements of the 1933
Act.
(b)
In
light of the above, notwithstanding the other provisions of this Agreement,
the
Company agrees that the provisions of this Agreement as they relate to
a Shelf
Registration shall also apply to an Exchange Offer Registration to the
extent,
and with such reasonable modifications thereto as may be, reasonably
requested
by the Remarketing Agent or by one or more Participating Broker-Dealers,
in each
case as provided in clause (ii) below, in order to expedite or facilitate
the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided
that:
(i)
the Company shall not be required to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise
be
contemplated by Section 3(i), for a period exceeding 180 days after the
last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement) and Participating Broker-Dealers
shall
not be authorized by the Company to deliver and shall not deliver such
Prospectus after such period in connection with the resales contemplated
by this
Section 4; and
(ii)
the application of the Shelf Registration procedures set forth in Section
3 of
this Agreement to an Exchange Offer Registration, to the extent not required
by
the positions of the staff of the SEC or the 1933 Act and the rules and
regulations thereunder, will be in conformity with the reasonable request
in
writing to the Company by the Remarketing Agent or with the reasonable
request
in writing to the Company by one or more broker-dealers who certify to
the
Remarketing Agent and the Company in writing that they anticipate that
they will
be Participating Broker-Dealers; and provided
further
that, in connection with such application of the Shelf Registration procedures
set forth in Section 3 to an Exchange Offer Registration, the Company
shall be
obligated (x) to deal only with one entity representing the Participating
Broker-Dealers, which shall be Credit Suisse First Boston LLC unless
it elects
not to act as such representative, (y) to pay the fees and expenses of
only one
counsel representing the Participating Broker-Dealers, which shall be
counsel to
the Remarketing Agent unless such counsel elects not to so act and (z)
to cause
to be delivered only one, if any, “cold comfort” letter with respect to the
Prospectus in the form existing on the last Exchange Date and with respect
to
each subsequent amendment or supplement, if any, effected during the
period
specified in clause (i) above.
(c) The
Remarketing Agent shall have no liability to the Company, other than
as Holders
in accordance with the terms hereof, or to any other Holder with respect
to any
request that they may make pursuant to Section 4(b) above.
5.
Indemnification
and
Contribution.
(a) The
Company agrees to indemnify and hold harmless the Remarketing Agent,
each Holder
and each Person, if any, who controls the Remarketing Agent or any Holder
within
the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act,
or is under common control with, or is controlled by, the Remarketing
Agent or
any Holder (each, a “Participant”),
from
and against all losses, claims, damages and liabilities (including, without
limitation, any legal fees or other expenses reasonably incurred by a
Participant in connection with defending or investigating any such action
or
claim) caused by any untrue statement or alleged untrue statement of
a material
fact contained in any Registration Statement (or any amendment thereto)
pursuant
to which Exchange Securities or Registrable Securities were registered
under the
1933 Act, including all documents incorporated therein by reference,
or caused
by any omission or alleged omission to state therein a material fact
required to
be stated therein or necessary to make the statements therein not misleading,
or
caused by any untrue statement or alleged untrue statement of a material
fact
contained in any Prospectus (as amended or supplemented if the Company
shall
have furnished any amendments or supplements thereto) forming a part
of such
Registration Statement, or caused by any omission or alleged omission
to state
therein a material fact necessary to make the statements therein, in
the light
of the circumstances under which they were made, not misleading, except
insofar
as such losses, claims, damages or liabilities are caused by any such
untrue
statement or omission or alleged untrue statement or omission based upon
and in
conformity with information relating to the Remarketing Agent or any
Holder
furnished to the Company in writing by the Remarketing Agent or any selling
Holder expressly for use therein; provided that the foregoing indemnity
with
respect to any Prospectus shall not inure to the benefit of any Holder
from whom
the Person asserting any such losses, claims, damages or liabilities
purchased
Securities, or any Person controlling such Holder, if a copy of the final
Prospectus (as then amended or supplemented if the Company shall have
furnished
any amendments or supplements thereto) was not sent by, or delivered
on behalf
of, such Holder to such Person at or prior to the written confirmation
of the
sale of the Securities to such Person, if the final Prospectus (as so
amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability. In connection with any Underwritten Offering permitted
by
Section 3, the Company will also enter into an underwriting agreement
pursuant
to which the Company will agree to indemnify the Underwriters, if any,
selling
brokers, dealers and similar securities industry professionals participating
in
such Underwritten Offering, their officers and directors and each Person
who
controls such Persons (within the meaning of either Section 15 of the
1933 Act
or Section 20 of the 0000 Xxx) to the same extent as provided above with
respect
to the indemnification of the Holders, if requested in connection with
any
Registration Statement for such Underwritten Offering.
(b) Each
Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company,
the
Remarketing Agent and the other selling Holders, and each of their respective
directors and officers who sign the Registration Statement and each Person,
if
any, who controls the Company, the Remarketing Agent and any other selling
Holder within the meaning of either Section 15 of the 1933 Act or Section
20 of
the 1934 Act to the same extent as the foregoing indemnity from the Company
to
the Remarketing Agent and the Holders pursuant to Section 5(a), but only
with
reference to information relating to such Holder furnished to the Company
in
writing by such Holder expressly for use in any Registration Statement
(or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In
case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant
to
either paragraph (a) or paragraph (b) above, such Person (the “Indemnified
Party”) shall promptly notify the Person against whom such indemnity may be
sought (the “Indemnifying Party”) in writing, but the failure to so promptly
notify the Indemnifying Party shall not negate the obligation to so indemnify
such Indemnified Party unless the Indemnifying Party is materially prejudiced
by
such delay, and the Indemnifying Party, upon request of the Indemnified
Party,
shall retain counsel reasonably satisfactory to the Indemnified Party
to
represent the Indemnified Party and any others the Indemnifying Party
may
designate in such proceeding and shall pay the fees and expenses of such
counsel
related to such proceeding. In any such proceeding, any Indemnified Party
shall
have the right to retain its own counsel, but the fees and expenses of
such
counsel shall be at the expense of such Indemnified Party unless (i)
the
Indemnifying Party and the Indemnified Party shall have mutually agreed
to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party
and the
Indemnified Party and, in the opinion of counsel to the Indemnifying
Party,
representation of both parties by the same counsel would be inappropriate
due to
actual or potential differing interests between them. It is understood
that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of
more than one separate firm (in addition to any local counsel) for the
Remarketing Agent and all Persons, if any, who control the Remarketing
Agent
within the meaning of either Section 15 of the 1933 Act or Xxxxxxx 00
xx xxx
0000 Xxx, (x) the fees and expenses of more than one separate firm (in
addition
to any local counsel) for the Company, its directors, its officers who
sign the
Registration Statement and each Person, if any, who controls the Company
within
the meaning of either such Section and (c) the fees and expenses of more
than
one separate firm (in addition to any local counsel) for all Holders
and all
Persons, if any, who control any Holders within the meaning of either
such
Section, and that all such fees and expenses shall be reimbursed as they
are
incurred. In such case involving the Remarketing Agent and Persons who
control
the Remarketing Agent, such firm shall be designated in writing by the
Remarketing Agent. In such case involving the Holders and such Persons
who
control Holders, such firm shall be designated in writing by the Majority
Holders. In all other cases, such firm shall be designated by the Company.
The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent
or if
there be a final judgment for the plaintiff, the Indemnifying Party agrees
to
indemnify the Indemnified Party from and against any loss or liability
by reason
of such settlement or judgment. No Indemnifying Party shall, without
the prior
written consent of the Indemnified Party, effect any settlement of any
pending
or threatened proceeding in respect of which such Indemnified Party is
or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release
of
such Indemnified Party from all liability on claims that are the subject
matter
of such proceeding.
(d) If
the
indemnification provided for in paragraph (a) or paragraph (b) of this
Section 5
is unavailable to an Indemnified Party or insufficient in respect of
any losses,
claims, damages or liabilities, then each Indemnifying Party under such
paragraph, in lieu of indemnifying such Indemnified Party thereunder,
shall
contribute to the amount paid or payable by such Indemnified Party as
a result
of such losses, claims, damages or liabilities in such proportion as
is
appropriate to reflect the relative fault of the Indemnifying Party or
parties
on the one hand and of the Indemnified Party or parties on the other
hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders 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 Company or by
the Holders
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’
respective obligations to contribute pursuant to this Section 5(d) are
several
in proportion to the respective principal amount of Registrable Securities
of
the applicable Holder that were registered pursuant to a Registration
Statement.
(e) The
Company and
each Holder agree that it would not be just or equitable if contribution
pursuant to Section 5(d) above were determined by pro rata allocation
or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 5(d) above. The amount paid or
payable by
an Indemnified Party as a result of the losses, claims, damages and liabilities
referred to in Section 5(d) above shall be deemed to include, subject
to the
limitations set forth above, 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 Section 5, no
Holder
shall be required to indemnify or contribute any amount in excess of
the amount
by which the total price at which Registrable Securities were sold by
such
Holder exceeds the amount of any damages that such Holder has otherwise
been
required to pay by reason of such untrue or alleged untrue statement
or omission
or alleged omission. No Person guilty of fraudulent misrepresentation
(within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
The
remedies provided for in this Section 5 are not exclusive and shall not
limit
any rights or remedies which may otherwise be available to any Indemnified
Party
at law or in equity.
The
indemnity and contribution provisions contained in this Section 5 shall
remain
operative and in full force and effect regardless of (i) any termination
of this
Agreement, (ii) any investigation made by or on behalf of the Remarketing
Agent,
any Holder or any Person controlling the Remarketing Agent or any Holder,
or by
or on behalf of the Company, its officers or directors or any Person
controlling
the Company, (iii) acceptance of any of the Exchange Securities and (iv)
any
sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6.
Miscellaneous.
(a) No
Inconsistent
Agreements.
The Company has
not entered into, and on or after the date of this Agreement will not
enter
into, any agreement which is inconsistent with the rights granted to
the Holders
of Registrable Securities in this Agreement or otherwise conflicts with
the
provisions hereof. 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 other issued and outstanding securities under any such
agreements.
(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 in aggregate principal amount
of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to any departure from the
provisions
of Section 5 hereof or this paragraph (b) shall be effective as against
any
Holder of Registrable Securities unless consented to in writing by such
Holder.
(c) Notices.
All notices and
other communications provided for or permitted hereunder shall be made
in
writing by hand-delivery, registered first-class mail, telecopier, or
any
courier guaranteeing overnight delivery (i) if to a Holder, at the most
current
address given by such Holder to the Company by means of a notice given
in
accordance with the provisions of this Section 6(c), which address initially
is,
with respect to the Remarketing Agent, the address set forth in the Remarketing
Agreement; and (ii) if to the Company, initially at the Company’s address set
forth in the Remarketing Agreement and thereafter at such other address,
notice
of which is given in accordance with the provisions of this Section
6(c).
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 pre-paid, if mailed; when answered back,
if
telexed; when receipt is 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.
(d) Successors
and
Assigns.
This Agreement
shall inure to the benefit of, and be binding upon, the successors, assigns
and
transferees of each of the parties, including, without limitation and
without
the need for an express assignment, subsequent Holders of Registrable
Securities; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation
of the terms of the Securities and the Remarketing Agreement. If any
transferee
of any Holder shall acquire Registrable Securities, in any manner, whether
by
operation of law or otherwise, such Registrable Securities shall be held
subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities 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
and such Person shall be entitled to receive the benefits hereof. The
Remarketing Agent shall have no liability or obligation to the Company
with
respect to any failure by a Holder to comply with, or any breach by any
other
Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases
and
Sales of Securities.
The Company shall
not, and shall use its reasonable best efforts to cause its affiliates
(as
defined in Rule 405 under the 0000 Xxx) not to, purchase and then resell
or
otherwise transfer any Securities.
(f) Third
Party
Beneficiary.
Each Holder shall
be a third party beneficiary to the agreements made hereunder between
the
Company, on the one hand, and the Remarketing Agent, on the other hand,
shall be
bound by all of the terms and provisions of this Agreement and shall
have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights
of
Holders hereunder.
(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.
(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.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
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EL
PASO CORPORATION
By:
/s/Xxxx X. Xxxxxx
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|
|
Name:
Xxxx X. Xxxxxx
Title:
Vice President
|
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Confirmed
and accepted as of the date first above written:
By:
Credit Suisse First Boston LLC
By:
/s/Xxxx X. Xxxxx
|
|
|
Name:
Xxxx X. Xxxxx
Title:
Managing Director
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