Exhibit 4.11
$1,147,000,000
MIDWEST GENERATION PASS THROUGH TRUSTS
Pass Through Certificates, Series A and Series B
REGISTRATION RIGHTS AGREEMENT
August 17, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
as representatives of the several Purchasers
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Edison Mission Energy, a California corporation ("EME"), and
its wholly-owned subsidiary Midwest Generation, LLC, a Delaware limited
liability company (the "COMPANY" and together with EME, the "REGISTRANTS"),
propose, subject to the terms and conditions stated in a purchase agreement
dated August 17, ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
Company of New York, acting not in its individual capacity but solely as trustee
(in its individual capacity as such trustee, the "PASS THROUGH TRUSTEE") under
each of the Pass Through Trust Agreements (the "PASS THROUGH TRUST AGREEMENTS")
dated as of August 17, 2000 among the Company and the Pass Through Trustee, will
issue and sell to Credit Suisse First Boston Corporation ("CSFB"), ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇"), Chase Securities Inc. ("CSI"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. ("SSB") and ▇▇ ▇▇▇▇▇ Securities Corp. ("COWEN" and together with CSFB,
▇▇▇▇▇▇, CSI and SSB, the several "PURCHASERS") Midwest Generation Pass Through
Certificates, Series A in the aggregate amount of $333,500,000 and Midwest
Generation Pass Through Certificates, Series B in the aggregate amount of
$813,500,000 (such Pass Through Certificates are herein referred to as the
"INITIAL SECURITIES"). Capitalized terms used herein but not defined herein
shall have the respective meanings specified in the Purchase Agreement whether
expressly set forth therein or by reference to another agreement.
SECTION 1. DEFINITIONS. The definitions set forth in this
Agreement shall equally apply to both the singular and plural forms of the terms
defined. As used in this Agreement, the following terms shall have the following
meanings:
"ADVICE" shall have the meaning set forth in the last
paragraph of Section 5 of this Agreement.
"AFFILIATE", with respect to any Person, shall mean any other
Person that directly or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with such first Person. The term
"control" means the possession, directly or indirectly of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities or by contract or otherwise. For purposes of
Section 2, an "Affiliate" of the Company or EME shall mean and include, in
addition, any Person deemed an affiliate thereof under the Securities Act or the
Exchange Act in connection with the Exchange Offer.
"CLOSING DATE" shall have the meaning set forth in the
Purchase Agreement.
"COMMISSION" shall mean the United States Securities and
Exchange Commission.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement.
"CURE DATE" shall have the meaning set forth in Section 4(a)
of this Agreement.
"EFFECTIVE DATE" shall mean the date which is 270 days after
the Closing Date.
"EFFECTIVE PERIOD" shall have the meaning set forth in Section
3(a) of this Agreement.
"EME" shall have the meaning set forth in the first paragraph
of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" shall have the meaning set forth in Section
2(a) of this Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
set forth in Section 2(a) of this Agreement.
"EXCHANGE PERIOD" shall have the meaning set forth in Section
2(a) of this Agreement.
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"EXCHANGE SECURITIES" shall have the meaning set forth in
Section 2(a) of this Agreement.
A "HOLDER" of Registrable Securities shall mean the registered
holder of such securities or any beneficial owner thereof.
"HOLDER INDEMNIFIED PARTY" shall have the meaning set forth in
Section 8(a) of this Agreement.
"HOLDER INFORMATION" shall have the meaning set forth in
Section 8(a) of this Agreement.
"ILLIQUIDITY EVENT" with respect to the Initial Securities
shall mean any of the following events:
(a) as of the Effective Date, both (i) an Exchange Offer
Registration Statement (which, if applicable pursuant to Section 2(a), covers
resales of such Exchange Securities) has not become effective and (ii) the
Registrable Securities are not the subject of an Initial Shelf Registration
Statement which has become effective; or
(b) the Exchange Securities offered in exchange for the
Registrable Securities are the subject of an Exchange Offer Registration
Statement which was effective (and which, if applicable pursuant to Section
2(a), covered resales of such Exchange Securities) but which ceased to be
effective for any reason prior to the end of the Exchange Period; or
(c) the Registrable Securities are the subject of an Initial
Shelf Registration Statement or Subsequent Shelf Registration Statement which
was effective but which has ceased to be effective for any reason prior to the
end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on the
date subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in
clause (a) above, either (i) an Exchange Offer Registration
Statement (which, if applicable pursuant to Section 2(a),
covers resales of the Exchange Securities exchanged for such
Registrable Securities) shall become effective and an Exchange
Offer for such Registrable Securities shall have commenced or
(ii) an Initial Shelf Registration Statement covering such
Registrable Securities shall become effective; or
(ii) in the case of an Illiquidity Event described in
clause (b) above, either (i) an Exchange Offer Registration
Statement (which, if applicable pursuant to Section 2(a)
covers resales of the Exchange Securities offered in exchange
for such Initial Securities) shall become effective and an
Exchange Offer for such Registrable Securities shall have
commenced pursuant to an Exchange Offer Registration Statement
or
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(ii) an Initial Shelf Registration Statement covering
such Registrable Securities shall become effective; or
(iii) in the case of an Illiquidity Event described
in clause (c) above, a Subsequent Shelf Registration Statement
covering such Registrable Securities shall become effective.
"INITIAL SECURITIES" shall have the meaning set forth in the
first paragraph of this Agreement.
"INITIAL SHELF REGISTRATION STATEMENT" shall have the meaning
set forth in Section 3(a) of this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 5(m)
of this Agreement.
"MANAGING UNDERWRITERS" shall mean the investment banker or
investment bankers and manager or managers that shall administer an Underwritten
Offering.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"PASS THROUGH TRUST AGREEMENTS" shall have the meaning set
forth in the first paragraph of this Agreement.
"PASS THROUGH TRUSTEE" shall have the meaning set forth in the
first paragraph of this Agreement, including its successors and any successor
trustee under the Pass Through Trust Agreements.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
and all other amendments and supplements to the prospectus included in any
Registration Statement, including post-effective amendments and all material
incorporated by reference into such prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
first paragraph of this Agreement.
"PURCHASERS" shall have the meaning set forth in the first
paragraph of this Agreement.
"RECORDS" shall have the meaning set forth in Section 5(m) of
this Agreement.
"REGISTRABLE SECURITIES" shall mean the Initial Securities
upon original issuance thereof and at all times subsequent thereto until, in the
case of any such Initial Security, (i) a Registration Statement covering such
Initial Security, or the Exchange
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Security to be exchanged for such Initial Security (and, in the case of any
Resale Security, any resale thereof), has been declared effective and such
Initial Security has been disposed of or exchanged (or, in any case where such
Registration Statement covers the resale of Resale Securities, such Initial
Security has been exchanged and the Resale Security received therefor has been
resold), as the case may be, in accordance with such effective Registration
Statement, (ii) such Initial Security is sold in compliance with Rule 144 or
would be permitted to be sold pursuant to Rule 144(k), (iii) such Initial
Security shall have been otherwise transferred and a new certificate therefor
not bearing a legend restricting further transfer shall have been delivered by
or on behalf of the Registrants and such Initial Security shall be tradeable by
each holder thereof without restriction under the Securities Act or the Exchange
Act and without material restriction under the applicable blue sky or state
securities laws or (iv) such Initial Security ceases to be outstanding.
"REGISTRANTS" shall have the meaning set forth in the first
paragraph of this Agreement.
"REGISTRATION STATEMENT" shall mean any registration statement
(including any Shelf Registration Statement) of the Company or EME that covers
any of the Registrable Securities or the Exchange Securities, as the case may
be, pursuant to the provisions of this Agreement, including the Prospectus which
is part of such Registration Statement, amendments (including post-effective
amendments) and supplements to such Registration Statement and all exhibits and
appendices to any of the foregoing. For purposes of the foregoing, unless the
context requires otherwise, a Registration Statement for an Exchange Offer shall
not be deemed to cover Registrable Securities held by a Restricted Person unless
such Registration Statement covers the resale of Resale Securities to be
received by such Restricted Person pursuant to such Exchange Offer and any such
Initial Securities shall continue to be Registrable Securities.
"RESALE PURCHASER" shall have the meaning set forth in Section
8(a) of this Agreement.
"RESALE SECURITIES" shall mean any Exchange Security received
by a Restricted Person pursuant to an Exchange Offer, and at all times
subsequent thereto, until, subject to the time periods set forth herein, such
Exchange Security has been resold by such Restricted Person.
"RESTRICTED PERSON" shall mean (a) any Affiliate of the
Company or EME, (b) any Purchaser or (c) any Affiliate or any Purchaser (other
than Affiliates of such Purchaser that (i) is acquiring Exchange Securities in
the ordinary course of business and do not have an arrangement with any Person
to distribute Exchange Securities and (ii) may trade such Exchange Securities
without restriction under the Securities Act).
"RULE 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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"RULE 144A" shall mean Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"SHELF NOTICE" shall have the meaning set forth in Section
2(b) of this Agreement.
"SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in Section 3(b) of this Agreement.
"SPECIAL COUNSEL" shall mean Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special counsel to the Purchasers, or any other firm acceptable to the
Registrants, acting as special counsel to the holders of Registrable Securities
or Exchange Securities.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" shall have the
meaning set forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall
mean a registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
SECTION 2. EXCHANGE OFFER.
(a) Unless the Registrants determine in good faith that the
Exchange Offer shall not be permissible under applicable law or Commission
policy, the Registrants shall prepare and cause to be filed with the Commission
as soon as reasonably practicable after the Closing Date, subject to Sections
2(b) and 2(c) of this Agreement, a Registration Statement (an "EXCHANGE OFFER
REGISTRATION STATEMENT") for an offer to exchange (an "EXCHANGE OFFER") the
Registrable Securities (subject to Section 2(c)) for (x) an EME Guarantee which
is registered under the Securities Act and (y) a like aggregate principal amount
of pass-through certificates otherwise in all material respects substantially
identical to the Initial Securities (the "EXCHANGE SECURITIES") (and which, in
the case of the pass-through certificates, are entitled to the benefits of the
Pass Through Trust Agreements, which shall be qualified under the TIA in
connection with such registration, or agreements which are substantially
identical in all material respects to the Pass Through Trust Agreements), other
than (i) such changes to the Pass Through Trust Agreements or any substantially
identical agreements as the Pass Through Trustee and the Registrants may deem
necessary in connection with the Pass Through Trustee's
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rights and duties or to comply with any requirements of the Commission to effect
or maintain the qualification thereof under the TIA and (ii) such changes
relating to restrictions on transfer set forth in the Pass Through Trust
Agreements. The Exchange Offer shall be registered under the Securities Act on
the appropriate form of Registration Statement and shall comply with all
applicable tender offer rules and regulations under the Exchange Act and with
all other applicable laws. Subject to the terms and limitations of Section 2(c),
such Exchange Offer Registration Statement may also cover any resales of
Exchange Securities by any Restricted Person, in the manner or manners
designated by them which, in any event, is reasonably acceptable to the
Registrants.
The Registrants shall use their reasonable best efforts to (i)
cause the Exchange Offer Registration Statement to become effective under the
Securities Act on or prior to the Effective Date, (ii) keep the Exchange Offer
open for a period of not less than the shorter of (A) the period ending when the
last remaining Initial Security is tendered into the Exchange Offer and (B) 30
days from the date notice is mailed to the holders of the Initial Securities
(PROVIDED that in no event shall such period be less than the period required
under applicable Federal and state securities laws), and (iii) maintain such
Exchange Offer Registration Statement continuously effective for a period (the
"EXCHANGE PERIOD") of not less than the longer of (A) the period until the
consummation of the Exchange Offer and (B) 120 days after effectiveness of the
Exchange Offer Registration Statement; PROVIDED, HOWEVER, that in the event that
all resales of Exchange Securities (including, subject to the time periods set
forth herein, any Resale Securities and including, subject to the time periods
set forth herein, any resales by broker-dealers that receive Exchange Securities
for their own account pursuant to the Exchange Offer) covered by such Exchange
Offer Registration Statement have been made, the Exchange Offer Registration
Statement need not remain continuously effective for the period set forth in
clause (B) above. Upon consummation of the Exchange Offer, the Registrants shall
deliver to the Pass Through Trustee under the Pass Through Trust Agreements for
cancellation all Initial Securities tendered by the holders thereof pursuant to
the Exchange Offer and not withdrawn prior to the date of consummation of the
Exchange Offer. Each Restricted Person shall notify the Registrants promptly
after re-selling all Resale Securities held by such Restricted Person which are
covered by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the
Exchange Offer (other than any Restricted Person) shall be required as a
condition to participating in the Exchange Offer to represent that (i) it is not
an Affiliate of the Company or EME, (ii) any Exchange Securities to be received
by it shall be acquired in the ordinary course of its business and (iii) that at
the time of the consummation of the Exchange Offer it shall have no arrangement
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. Upon consummation of an Exchange
Offer in accordance with this Section 2 and compliance with the other provisions
of this Section 2, the Registrants shall, subject to Sections 2(b) and 2(c),
have no further obligation to register Registrable Securities pursuant to
Section 3(a) of this Agreement; PROVIDED that the other provisions of this
Agreement shall continue to apply as set forth in such provisions.
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(b) In the event that the Registrants reasonably determine in
good faith that (i) the Exchange Securities would not, upon receipt in the
Exchange Offer by any holder of Registrable Securities (other than any
Restricted Person and other than any holder who is not acquiring such Exchange
Securities in the ordinary course of business or who has an arrangement with any
person to participate in the distribution of such Exchange Securities), be
tradeable by each holder thereof without restriction under the Securities Act
and the Exchange Act and without restriction under applicable blue sky or state
securities laws, (ii) after conferring with counsel, the Commission is unlikely
to permit the Exchange Offer Registration Statement to become effective prior to
the Effective Date (except in the circumstances set forth in Section 2(c)) or
(iii) the Exchange Offer may not be made in compliance with applicable laws,
then the Registrants shall promptly deliver notice thereof (the "SHELF NOTICE")
to the holders of the Registrable Securities and the Pass Through Trustee and
shall thereafter file an Initial Shelf Registration Statement pursuant to, and
otherwise comply with, the provisions of Section 3(a). Following the delivery of
a Shelf Notice in accordance with this Section 2(b) and compliance with Section
3(a), the Registrants shall not have any further obligation under this Section
2.
(c) In the event that the Registrants reasonably determine in
good faith that (i) the Exchange Securities would not, upon consummation of any
resale thereof by a Restricted Person to any Person other than another
Restricted Person, be tradeable by each holder thereof without restriction under
the Securities Act (other than applicable requirements) and the Exchange Act and
without restriction under applicable blue sky or state securities laws or (ii)
the Commission is unlikely to permit the Exchange Offer Registration Statement
to become effective prior to the Effective Date solely because such Registration
Statement covers resales of the Exchange Securities by Restricted Persons, then
the Registrants shall promptly deliver a Shelf Notice to the Restricted Persons
who are holders of Registrable Securities and to the Pass Through Trustee, and
the Registrants shall thereafter file an Initial Shelf Registration Statement
with respect to any such Registrable Securities pursuant to, and otherwise
comply with, the provisions of Section 3(a); PROVIDED that such Initial Shelf
Registration Statement shall only cover resales of Registrable Securities by
Restricted Persons if a Shelf Notice is not then otherwise required to be
delivered pursuant to Section 2(b); and, PROVIDED, FURTHER, that such Initial
Shelf Registration Statement covering Registrable Securities held by Restricted
Persons shall be kept effective for at least a period of 120 days and is not
required to remain effective with respect to Registrable Securities held by
Restricted Persons thereafter. Following the delivery of a Shelf Notice in
accordance with this Section 2(c) and compliance with Section 3(a), the
Registrants shall not have any further obligation under this Section 2 with
respect to the filing of an offer to exchange the Registrable Securities held by
the Restricted Persons (including, without limitation, any obligation to provide
that an Exchange Offer Registration Statement filed pursuant to Section 2(a)
cover resales of Exchange Securities by Restricted Persons); PROVIDED that the
provisions of this Section 2 shall otherwise remain in full force and effect
with respect to Registrable Securities held by any person other than a
Restricted Person.
SECTION 3. SHELF REGISTRATION; REGISTRABLE SECURITIES. With
respect to the Registrable Securities, if a Shelf Notice is delivered in
accordance with Section 2(b)
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or 2(c) of this Agreement, then the Registrants shall comply with the following
provisions of this Section 3:
(a) INITIAL SHELF REGISTRATION. The Registrants shall prepare
and cause to be filed with the Commission a Registration Statement for an
offering to be made on a continuous basis other than pursuant to an Underwritten
Offer pursuant to Rule 415 covering all of the Registrable Securities (or, if a
Shelf Notice is delivered solely pursuant to Section 2(c), all of the
Registrable Securities held by any Restricted Persons) (the "INITIAL SHELF
REGISTRATION STATEMENT"); PROVIDED, HOWEVER, that no holder shall be entitled to
have its Registrable Securities covered by such Initial Shelf Registration
Statement unless such holder agrees in writing, within 10 Business Days after
actual receipt of a request therefrom, to be bound by all the provisions of this
Agreement applicable to such holder. No holder shall be entitled to the benefits
of Section 4 of this Agreement unless and until such holder shall have provided
all information reasonably requested by the Registrants (after conferring with
counsel), and such holder shall not be entitled to such benefits with respect to
any period during which such information was not provided. Each holder to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Registrants all information required to be disclosed in order to make the
information previously furnished to the Registrants by such holder not
materially misleading. The Initial Shelf Registration Statement shall be an
appropriate form permitting registration of such Registrable Securities for such
resale by the holders thereof in the manner or manners reasonably designated by
them (but excluding any Underwritten Offerings). The Registrants shall use their
reasonable best efforts to (A) cause the Initial Shelf Registration Statement to
be declared effective under the Securities Act on or prior to the Effective Date
and (B) keep the Initial Shelf Registration Statement continuously effective
under the Securities Act for a period of two years after the Closing Date
(subject to extension pursuant to the last paragraph of Section 5 and subject,
with respect to Registrable Securities held by Restricted Persons, to the
limitations set forth in Section 2(c)) (such two-year period, as it may be
extended, being the "EFFECTIVE PERIOD"), or such shorter period ending when (1)
all Registrable Securities covered by the Initial Shelf Registration Statement
have been sold or (2) a Subsequent Shelf Registration Statement covering all of
such Registrable Securities remaining unsold has been declared effective under
the Securities Act or (3) all Registrable Securities may be sold pursuant to
subsection (k) of Rule 144.
Notwithstanding any other provision hereof, the Registrants
may postpone or suspend the filing or the effectiveness of a Registration
Statement (or any amendments or supplements thereto), if (1) such action is
required by applicable law, or (2) such action is taken by the Registrants in
good faith and for valid business reasons (not including avoidance of such
party's obligations hereunder), including the acquisition or divestiture of
assets, other pending corporate developments, public filings with the Commission
or other similar events, so long as the Registrants promptly thereafter comply
with the requirements of Section 5(b) hereof, if applicable. Notwithstanding the
occurrence of any event referred to in the immediately preceding sentence (a
"SUSPENSION"), such event shall not suspend, postpone or in any other manner
affect the running of the time period after which an Illiquidity Event shall be
deemed to occur and, if the filing or effectiveness of a Registration Statement
is postponed or suspended
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as a result of a Suspension, an Illiquidity Event shall nonetheless exist if all
other requirements set forth for the occurrence of an Illiquidity Event shall be
satisfied, and the provisions of Section 4 requiring the accrual payment of
additional interest, as set forth in such Section, on the Registrable
Securities, shall be applicable.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effective Period after the
Effective Date, the Registrants may attempt to obtain the withdrawal of any
order suspending the effectiveness thereof, and may amend such Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
applicable to the Initial Securities pursuant to Rule 415 covering all of such
Registrable Securities remaining unsold (a "SUBSEQUENT SHELF REGISTRATION
Statement"). If a Subsequent Shelf Registration Statement is declared effective,
the Registrants shall use their reasonable best efforts to keep such Shelf
Registration Statement continuously effective for a period after the date of
such effectiveness equal in length to the length of the Effective Period plus
the aggregate number of days from the date of the order suspending the
effectiveness of the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement. As used herein, the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statement.
SECTION 4. ADDITIONAL INTEREST FOR ILLIQUIDITY.
(a) The Registrants acknowledge and agree that the Purchasers
(and any subsequent holders of the Initial Securities) have acquired the Initial
Securities in reliance on the covenant of the Registrants to use their
reasonable best efforts to (i) cause to become effective on or prior to the
Effective Date (A) the Exchange Offer Registration Statement or (B) an Initial
Shelf Registration Statement, and (ii) maintain the respective effectiveness of
such Registration Statements as described herein. The Registrants further
acknowledge and agree that the failure of the Registrants to fulfill such
covenants will have an adverse effect on the holders of the Initial Securities.
Therefore, the Registrants agree that from and after the date on which any
Illiquidity Event occurs, additional interest (in addition to the interest
otherwise payable with respect to the Registrable Securities) shall accrue with
respect to the Initial Securities until but not including the date on which such
Illiquidity Event shall cease to exist (and provided no other Illiquidity Event
with respect to any Initial Securities shall then be continuing), at the rate of
one half of one percent (0.50%) per annum, which additional interest shall be
payable to the holders of all Initial Securities at the times, in the manner and
subject to the same terms and conditions set forth in the Pass Through Trust
Agreements, as nearly as may be, as though the interest rates provided in such
Initial Securities had been increased by one half of one percent (0.50%) per
annum. Subject to the provisions of this Section 4, the Registrants agree that
the holders of all Initial Securities shall be entitled to the payment of any
and all additional interest on the Initial Securities that shall accrue pursuant
to this Section 4.
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Any such additional interest accrued on any such Initial
Securities but unpaid on the date on which such interest ceases to accrue (the
"CURE DATE") shall be due and payable on the first interest payment date
following the next record date following such Cure Date (or the record date
occurring on such Cure Day, if such Cure Date is a record date) to the holders
of record of such Initial Securities on such record date.
(b) The Registrants shall promptly notify the holders of the
Initial Securities and the Pass Through Trustee of the occurrence of any
Illiquidity Event of which they have knowledge.
Notwithstanding the foregoing, no holder shall be entitled to
receive the additional interest described in clause (a) of this Section 4 with
respect to the Registrable Securities held by such holder if the applicable
Illiquidity Event arises by reason of the failure of such holder to provide such
information as (i) the Registrants may reasonably request, with reasonable prior
written notice, for use in the Shelf Registration Statement or any Prospectus
included therein to the extent the Registrants reasonably determine that such
information is required to be included therein by applicable law, (ii) the NASD
or the Commission may request in connection with such Shelf Registration
Statement, or (iii) is required to comply with the agreements of such holder
contained in clause (a) of Section 3 to the extent compliance thereof is
necessary for the Shelf Registration Statement to be declared effective.
SECTION 5. REGISTRATION PROCEDURES. In connection with the
registration of any Registrable Securities or Exchange Securities pursuant to
Sections 2 and 3 hereof, the Registrants shall use their reasonable best efforts
to effect such registration to permit the sale of such Registrable Securities or
Exchange Securities in accordance with any permitted intended method or methods
of disposition thereof, and pursuant thereto the Registrants shall:
(a) prepare and cause to be filed with the Commission a
Registration Statement or Registration Statements as prescribed by Sections 2
and 3 of this Agreement, and use their reasonable best efforts to cause each
such Registration Statement to become effective and remain effective for the
applicable period as provided herein; PROVIDED, HOWEVER, that (i) during the
period in which the Initial Registration Statement is open for the Restricted
Persons, the Registrants shall afford any Restricted Person which is a holder of
Registrable Securities or Exchange Securities and the Special Counsel, upon such
holder's written request to the Registrants, an opportunity to review copies of
all such documents proposed to be filed, and (ii) if such filing is pursuant to
Section 3, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto (including documents that would be
incorporated therein by reference after the initial filing of the Registration
Statement), the Registrants shall afford the Special Counsel for all holders of
the Registrable Securities covered by such Registration Statement an opportunity
to review copies of all such documents proposed to be filed;
(b) prepare and cause to be filed with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement as
may
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be necessary to keep such Registration Statement continuously effective for
the applicable period as provided herein; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented in
accordance with the intended methods of disposition by the sellers of
Registrable Securities covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof, notify the selling holders of Registrable Securities promptly
after the Registrants become aware thereof, and confirm such notice in writing,
(i) where a Prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or Prospectus or the initiation of any proceedings for
that purpose, (iv) of the receipt by the Registrants of any notification with
respect to the suspension of the qualification or exemption from qualification
of a Registration Statement or any of the Registrable Securities for offer or
sale in any jurisdiction, or the initiation of any proceeding for such purpose,
(v) of the existence of any fact known to the Registrants which results in such
Registration Statement or related Prospectus or any document incorporated
therein by reference containing any untrue statement of a material fact or
omitting to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (which notice may be accompanied by an instruction
that such notice constitutes material non-public information and to suspend the
use of the prospectus until the requisite changes have been made, and which
instruction shall require that such holders shall not communicate such material
non-public information to any third party and shall not sell or purchase, or
offer to sell or purchase, any securities of the Registrants after receipt of
such notice) and (vi) if the Registrants reasonably determine that the filing of
a post-effective amendment to such Registration Statement would be appropriate;
(d) if a Shelf Registration Statement is filed pursuant to
Section 3, use their reasonable efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction and, if any such order is issued, to obtain the withdrawal
of any such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to
Section 3, furnish to each selling holder of Registrable Securities who so
requests (at such holder's address set forth in the Securities Register) without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment
12
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(f) if a Shelf Registration Statement is filed pursuant to
Section 3, deliver to each selling holder of Registrable Securities without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and each amendment or supplement thereto as such persons may reasonably request,
and subject to the last paragraph of this Section 5, the Registrants hereby
consent to the use of such Prospectus and each amendment or supplement thereto
by each of the selling holders of Registrable Securities and the underwriters,
if any, in connection with the offering and sale of Registrable Securities
covered by such Prospectus and any amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities,
register or qualify, or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
the selling holders reasonably request in writing (PROVIDED that if Registrable
Securities are offered other than through an Underwritten Offering, the
Registrants agree to cause their counsel to perform blue sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(g)); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective; and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; PROVIDED, HOWEVER,
that neither Registrant will be required to qualify as a foreign corporation or
limited liability company, or to do business, to file a general consent or take
any action which would subject it to service of process in any jurisdiction or
take any action which would subject itself to taxation in any such jurisdiction;
(h) if a Shelf Registration Statement is filed pursuant to
Section 3, cooperate with the Pass Through Trustee and the selling holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company, and enable such Registrable
Securities to be in such authorized denominations and Registered in such names
as the holders may reasonably request at least three Business Days prior to any
such sale;
(i) if a Shelf Registration Statement is filed pursuant to
Section 3, upon the occurrence of any event contemplated by Section 5(c),
prepare a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under
13
which they were made, not misleading. If the Registrants so notify the holders
to suspend the use of the Prospectus after the occurrence of such an event, the
holders shall suspend use of the Prospectus, and not communicate such material
non-public information to any third party, and not sell or purchase, or offer to
sell or purchase, any securities of the Registrants, until the Registrants have
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) use their reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to continue to be rated by the
rating agencies that initially rated the Initial Securities during the period
that the Registration Statement is required hereunder to remain effective (it
being acknowledged, however, that the foregoing shall not be deemed to require
the Registrants to maintain the rating of such Registrable Securities at the
rating given the Initial Securities);
(k) prior to the effective date of the first Registration
Statement relating to the Registrable Securities or the Exchange Securities, as
the case may be, (i) provide the Pass Through Trustee with printed certificates
for such securities in definitive form or in a global form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for such
Registrable Securities or Exchange Securities represented by such certificates;
(l) if a Shelf Registration Statement is filed pursuant to
Section 3, enter into such reasonably required agreements and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of such Registrable Securities;
(m) in the event of any Underwritten Offering (which shall
only be undertaken at the option of the Registrants), if a Shelf Registration
Statement is filed pursuant to Section 3, make available prior to the filing
thereof for inspection by a representative of the holders of a majority in
aggregate principal amount of the Registrable Securities being sold, and the
Special Counsel, on the one hand, or underwriter on the other hand
(collectively, the "INSPECTORS"), during reasonable business hours, all
financial and other records, pertinent corporate documents and properties of the
Registrants (collectively, the "RECORDS"), and cause the officers, directors and
employees of the Registrants to supply all relevant information as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities; PROVIDED, HOWEVER, that as a condition to supplying such
information, the Registrants shall receive an agreement in writing from the
Special Counsel agreeing that any information that is designated in writing by
the Registrants, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such inspector (other than as to
holders of Registrable Securities) and by any holders of Registrable Securities
receiving such information, unless (i) disclosure of such information is
required pursuant to applicable law or by court or administrative order, (ii)
disclosure of such information is, in the reasonable opinion of counsel to the
Registrants, necessary to avoid or correct a misstatement or omission of a
material fact in the Registration Statement, Prospectus or any supplement or
post-effective amendment thereto or disclosure is otherwise required by law,
(iii) such information becomes generally available to the public other than as a
14
result of a disclosure by any inspector or any such holder of Registrable
Securities in violation of this Section 5(m) or (iv) such information is
approved for release by the Registrants, in writing;
(n) use their best efforts to cause the Pass Through Trust
Agreements or the trust indenture provided for in Section 2, as the case may be,
to be qualified under the TIA not later than the effective date of such
Registration Statement; and, in connection therewith, cooperate with the Pass
Through Trustee under the Pass Through Trust Agreements and the holders of the
Registrable Securities to effect such changes to the Pass Through Trust
Agreements as may be required for the Pass Through Trust Agreements to be so
qualified in accordance with the terms of the TIA and execute, and use their
best efforts to cause such Pass Through Trustee to execute, all documents as may
be required to effect such changes, and all other forms and documents required
to be filed with the Commission to enable the Pass Through Trust Agreements or
the trust indenture provided for in Section 2 to be so qualified in a timely
manner;
(o) otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5,
references to a Shelf Registration Statement, including a Shelf Registration
Statement filed pursuant to Section 3, shall be deemed to include any
Registration Statement, filed pursuant to Section 2, which covers, for the
period set forth therein, resales of Exchange Securities held by Restricted
Persons as provided in Section 2, and, in connection with such Restricted
Persons shall be entitled to exercise all rights, receive all notices and copies
of documents, and otherwise receive all benefits afforded to sellers or holders
of Registrable Securities under this Section 5 in connection with a Shelf
Registration Statement. Without limiting the generality of the foregoing, the
Registrants agree to fulfill their obligations set forth in Sections 5(a), (b),
(c), (d), (e), (f), (h), (j), (l) and (m) with respect to any such Registration
Statement filed pursuant to Section 2 insofar as it covers such resales.
The Registrants may require each seller of Registrable
Securities as to which any registration is being effected, as a condition
thereto, to furnish to the Registrants such information regarding the holder and
the distribution of such Registrable Securities as the Registrants may, from
time to time, request in writing, including without limitation stating that (i)
it is not an Affiliate of either Registrant, (ii) the amount of Registrable
Securities held by such holder prior to the Exchange Officer, (iii) the amount
of Registrable Securities owned by such holder to be exchanged in the Exchange
Offer and representing that such holder is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued, and (iv)
it is acquiring the Exchange Securities in its ordinary course of business and
to covenant and agree to promptly notify the Registrants if any such information
so provided by such seller ceases to be true and correct and will promptly
thereafter furnish the Registrants with corrected information. The Registrants
may exclude from such registration the Registrable Securities of any
15
Person who fails to furnish such information within a reasonable time after
receiving such request.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Registrants of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such holder shall forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such holder is advised in writing
(the "ADVICE") by the Registrants that the use of the applicable Prospectus may
be resumed, and has received copies of any amendments or supplements thereto
and, if so directed by the Registrants, such holder will deliver to the
Registrants (at such holder's expense) all copies in its possession, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice, or certify in writing as to the destruction thereof. In the event the
Registrants shall give any such notice, the length of the Effective Period shall
be extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(i) or (y) the Advice.
SECTION 6. DELIVERY OF PROSPECTUS; NOTIFICATION UPON RESALE.
The Purchasers acknowledge that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its own
account in exchange for Registrable Securities pursuant to the Exchange Offer
must deliver a prospectus in connection with any resale of such Resale
Securities. By so acknowledging, such Purchasers shall not be deemed to admit
that, by delivering a prospectus, it is an underwriter within the meaning of the
Securities Act.
Each Purchaser shall notify the Registrants promptly upon the
completion of the resale of the Resale Securities received by such Purchaser
pursuant to the Exchange Offer.
SECTION 7. REGISTRATION EXPENSES. EME shall bear all expenses
incurred in connection with the performance of the Registrants' obligations
under Sections 2, 3 and 4; PROVIDED, HOWEVER, that EME shall bear or reimburse
the holders for the reasonable fees and disbursements of only one counsel, the
Special Counsel, in accordance with the terms of the Purchase Agreement;
PROVIDED FURTHER, HOWEVER, that if the Registrants opt for an Underwritten
Offering, the Registrants shall not be responsible for any fees and expenses of
any Underwritten Offering, the Registrants shall not be responsible for any fees
and expenses of any underwriter, including any underwriting discounts and
commissions or any legal fees and expenses of counsel to the underwriters
(except for the reasonable fees and disbursements of counsel in connection with
state securities or blue sky qualification of any of the Registrable Securities
or the Exchange Securities).
16
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) EME agrees to (A) indemnify and hold harmless each holder
of Registrable Securities (including any Purchaser which holds Registrable
Securities, including Resale Securities, for its own account (each, a "RESALE
PURCHASER")) and each Person, if any, who controls any such Person within the
meaning of either the Securities Act or the Exchange Act and each director,
officer, employee or agent of each such Person (each, a "HOLDER INDEMNIFIED
PARTY") against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them are subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement covering Registrable Securities held by such person
or any Prospectus relating to any such Registration Statement, or any amendment
thereof or supplement thereto and all documents incorporated by reference
therein, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not misleading, and (B)
reimburse each such Holder Indemnified Party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that EME will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or Prospectus, or in any amendment
thereof or supplement thereto, in reliance upon and in conformity with written
information relating to such holder provided by such holder to the Registrants
specifically for use therein (collectively, the "HOLDER INFORMATION"); PROVIDED
FURTHER, HOWEVER, that the indemnity obligations arising out of this Section 8
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary Prospectus shall not inure to the
benefit of any holder or any controlling Person of such holder, to the extent
that a prospectus relating to such Registrable Securities or the Exchange
Securities, as the case may be, was required to be delivered by such holder
under the Securities Act in connection with such sale and any such loss, claim,
damage or liability of such holder results from the fact that such holder failed
to send or deliver to the Person asserting any such losses a copy of the final
Prospectus with or prior to the delivery of the written confirmation of the sale
of the Registrable Securities or the Exchange Securities, as the case may be,
and such final Prospectus would have cured the untrue statement or omission
giving rise to such losses if the Registrants had previously furnished copies
thereof to such holder. This indemnity agreement will be in addition to any
liability which the Registrants may otherwise have.
(b) As a condition to the inclusion of a holder's Registrable
Securities in a Registration Statement, such holder shall agree to (i) indemnify
and hold harmless the Registrants and each person who controls either Registrant
within the meaning of either the Securities Act or the Exchange Act, and each
director, officer, employee or agent of each such person, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them are subject under the Securities Act, the
17
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in a
Registration Statement covering Registrable Securities held by such holder or
any Prospectus relating to any such Registration Statement or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading and (ii) reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; in each and every case under clause (i) and (ii) above to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such Registration Statement or
Prospectus or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with the Holder Information. This indemnity agreement will be
in addition to any liability which any such holder may otherwise have. In no
event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds (net of
payment of all expenses) received by such holder upon the sale (or, in the case
of Resale Securities, the resale) of the Registrable Securities giving rise to
such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof (enclosing a copy of all papers served); but the omission
to so notify the indemnifying party (i) shall not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such omission results in the forfeiture by the
indemnifying party or material impairment of substantial rights and defenses and
(ii) shall not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligations
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party. After notice from the indemnifying party
to such indemnified party of its election to so assume the defense of such claim
or action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than costs
of investigation; provided that if (i) the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified party
shall have received an opinion of counsel reasonably acceptable to the
indemnifying party that representation of both parties by the same counsel would
be inappropriate due to actual or likely conflicts of interest between them, or
(ii) the indemnifying party shall not have employed counsel for the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action, then the indemnified party or parties shall
have the right to
18
select one firm of separate counsel (in addition to the fees and expenses of
local counsel) to assert any separate legal defenses and to otherwise defend
such action on behalf of such indemnified party or parties. No indemnifying
party shall be liable for any settlement of any action or claim for monetary
damages which an indemnified party may effect without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in Section 8(a) or (b)
hereof is for any reason, other than as specified in such provisions,
unavailable to or insufficient to hold harmless an indemnified party, then such
indemnifying party shall contribute to the aggregate losses, claims, damages or
liabilities (or actions in respect thereof) referred to in Section 8(a) or (b)
hereof in such proportion as is appropriate to reflect the relative fault and
benefits to the Registrants on the one hand and such holders on the other hand
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the Registrants
and such holders shall be determined by reference to, among other things, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any untrue statement or omission. The obligations of the
holders in this Section 8(d) are several in proportion to their respective
obligations hereunder and not joint. Notwithstanding the provisions of this
Section 8(d), in no event shall any holder of Registrable Securities be required
to contribute any amount which is in excess of (i) the aggregate principal
amount of Initial Securities sold or exchanged by such holder less (ii) the
amount of any damages that such person has otherwise been required to pay be
reason of such alleged untrue statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each Holder Indemnified Party shall have the same rights to contribution as a
holder, and each person who controls either Registrant within the meaning of
either the Securities Act or the Exchange Act and each officer, director,
employee and agent of such person, shall have the same rights to contribution as
the Registrants, subject in each case to the applicable terms and conditions of
this Section 8(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 8(d), notify such party or parties from whom
contribution may be sought; but the omission to so notify such party or parties
(x) shall not relieve the party or parties from whom contribution may be sought
from any liability under this paragraph (d) unless and to the extent it did not
otherwise learn of such action and such omission results in the forfeiture by
the party or parties from whom contribution may be sought or material impairment
of substantial rights and defenses and (y) shall not, in any event, relieve such
party or parties from any obligations other than under this Section 8(d).
(e) The provisions of this Section 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any holder
of Registrable Securities, the Purchasers, the Registrants or any of the
officers, directors or controlling
19
persons referred to in this Section 8 and will survive the sale (or, in the case
of Resale Securities, the resale) by a holder of Registrable Securities of such
Registrable Securities.
SECTION 9. UNDERWRITTEN REGISTRATIONS (IF ANY). No holder may
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Registrants, unless such holder
(a) agrees to sell such holder's Initial Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
SECTION 10. TERMINATION. In the event that no Initial
Securities are sold to the Purchasers pursuant to the Purchase Agreement, this
Agreement shall automatically terminate, without liability on the part of any
party. Upon the fulfillment of all obligations on the part of the Registrants to
register the Initial Securities as set forth herein (including maintaining the
effectiveness of any applicable Registration Statements), this Agreement shall
terminate; PROVIDED that the provisions of Sections 7 and 8 hereof shall survive
any termination and remain in full force and effect.
SECTION 11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Registrants neither have,
as of the date hereof, entered into, nor shall, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities herein or
otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Registrants have obtained the written consent of
holders of at least a majority of the then outstanding aggregate principal
amount of the Registrable Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2, of Exchange Securities); PROVIDED that with
respect to any matter that directly or indirectly affects the rights of any
Restricted Person hereunder occurring within the period in which the Initial
Registration Statement is open for the Restricted Persons, the Registrants shall
obtain the written consent of each such Restricted Person against which such
amendment, modification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except for the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold or exchanged pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold or exchanged
by such holders pursuant to such Registration Statement; PROVIDED, HOWEVER, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the
20
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Resale Purchasers and that
does not directly or indirectly affect the rights of holders of Registrable
Securities or Exchange Securities may be given by each of the Resale Purchasers
affected thereby.
(c) NOTICES. All notices and other communications (including,
without limitation, any notices or other communications to the Pass Through
Trustee) provided for or permitted hereunder shall be made in writing and
delivered by hand delivery, registered first-class mail, next-day air courier or
telecopier:
(i) if to a holder of Registrable Securities, at the
most current address given by such holder to the Registrants
in accordance with the provisions of this Section 11(c), which
address initially is, with respect to the Purchasers, at the
address set forth in the Purchase Agreement and thereafter at
the address for such holders of Registrable Securities set
forth in the Security Register applicable to such Registrable
Securities; and
(ii) if to the Registrants, initially at their
respective addresses set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 11(c).
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when received,
if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Pass
Through Trustee at the address specified in the Pass Through Trust Agreements.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment or any consent by the Registrants thereto, subsequent holders of
Registrable Securities.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. This Agreement and the rights and duties of
the parties hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of the parties hereto hereby submits to
the non-exclusive jurisdiction of the Federal and State Courts of the Borough of
Manhattan in the City of
21
New York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, together with the Purchase Agreement, supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(j) SECURITIES HELD BY THE REGISTRANTS, ETC. Whenever the
consent or approval of holders of a specified percentage of principal amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Registrants or any of their Affiliates (other than subsequent holders of
Registrable Securities if such subsequent holders are deemed to be Affiliates
solely by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the holders
of such required percentage.
22
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Registrants a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Purchasers and the Registrants in accordance with
its terms.
Very truly yours,
EDISON MISSION ENERGY
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
MIDWEST GENERATION, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The foregoing Registration
Rights Agreement is hereby
confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
acting on behalf of themselves and as
representatives of the several Purchasers
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
23
