REGISTRATION RIGHTS AGREEMENT dated as of December 28, 2005 among EL PASO CORPORATION and GOLDMAN, SACHS & CO. CITIGROUP GLOBAL MARKETS INC. as Dealer Managers REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.A
dated
as
of
December
28, 2005
among
EL
PASO CORPORATION
and
XXXXXXX,
XXXXX & CO.
CITIGROUP
GLOBAL MARKETS INC.
as
Dealer Managers
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”)
is made and entered into as of December 28, 2005, by and among EL PASO
CORPORATION (the “Company”),
a corporation duly organized and existing under the laws of the State of
Delaware, and XXXXXXX, SACHS & CO. and CITIGROUP GLOBAL MARKETS INC. (the
“Dealer
Managers”).
As
more fully described in the Dealer Manager Agreement dated as of December 2,
2005 (the “Dealer
Manager Agreement”),
by and among the Company, El Paso CGP Company, L.L.C. (formerly known as El
Paso
CGP Company), a Delaware limited liability company and a wholly-owned subsidiary
of the Company (“CGP”),
and the Dealer Managers, the Company proposes to make an exchange offer for
any
and all of the outstanding notes of each series set forth on Schedule I hereto
(the “Outstanding
CGP Notes”)
issued by CGP in exchange for newly issued notes of the Company (the
“Securities”)
as set forth on Schedule I hereto. The Securities to be issued in exchange
for
Outstanding CGP Notes 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 (the “Indenture”).
In
order to induce the Dealer Managers to enter into the Dealer Manager Agreement,
the Company has agreed to provide to the Holders (as defined herein) of the
Securities and their 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 Dealer Manager
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 Dealer Manager
Agreement.
“Company” shall
have the meaning set forth in the preamble and shall also include the Company’s
successors.
“Dealer
Manager Agreement”
shall have the meaning set forth in the preamble.
“Dealer
Managers”
shall have the meaning set forth in the preamble.
“Effective
Time”
in
the
case of (i) an Exchange Offer Registration, shall mean the time and date as
of which the SEC declares the Exchange Offer Registration Statement effective
or
as of which the Exchange Offer Registration Statement otherwise becomes
effective and (ii) a Shelf Registration, shall mean the time and date as of
which the SEC declares the Shelf Registration Statement effective or as of
which
the Shelf Registration Statement otherwise becomes effective.
“Exchange
Dates”
shall have the meaning set forth in Section 2(a)(ii).
“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
a
Registered 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 Registered 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 any holder (including the Dealer Managers), for so long as such
holder owns any Registrable Securities, and each of such holder’s 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 Dealer Managers
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.
“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.
“Registered
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.
“Registrable
Securities”
shall mean the Securities; provided,
however,
that the Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such 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 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 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 Special Counsel for the Holders (which Special Counsel
may
be selected by the Majority Holders and which Special Counsel may also be
counsel for the Dealer Managers) 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.
“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.
“Special
Counsel”
means, in connection with a Shelf Registration, a nationally recognized law
firm
experienced in securities law matters designated by the Company, with the
written consent of the Dealer Managers (which shall not be unreasonably
withheld), or one such other counsel as shall be specified by the Majority
Holders.
“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 135 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 commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective within 220 days following the Closing
Date. The Company shall use its commercially reasonable efforts to have the
Exchange Offer Registration Statement remain effective until the closing of
the
Registered Exchange Offer. The Company shall commence the Registered Exchange
Offer promptly after the Exchange Offer Registration Statement has been declared
effective by the SEC and use its commercially reasonable efforts to have the
Registered Exchange Offer consummated not later than 30 Business Days after
such
effective date. The Company shall commence the Registered 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 Registered 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 Registered
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.
As
soon as practicable after the last Exchange Date the Company shall:
(A) accept
for exchange Registrable Securities or portions thereof tendered and not validly
withdrawn pursuant to the Registered Exchange Offer; 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 equal in aggregate principal amount to the aggregate
principal amount of the Registrable Securities surrendered by such
Holder.
The
Company shall use its commercially reasonable efforts to complete the Registered
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 Registered Exchange Offer. The Registered
Exchange Offer shall not be subject to any conditions, other than that the
Registered Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC. The Company shall inform the Dealer
Managers of the names and addresses of the Holders to whom the Registered
Exchange Offer is made, and the Dealer Managers shall have the right, subject
to
applicable law, to contact such Holders and otherwise facilitate the tender
of
Registrable Securities in the Registered 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 commercially
reasonable 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 of a change in the existing
applicable law or applicable interpretations of the staff of the SEC, (ii)
the
Registered 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 Registered Exchange Offer
or, in the case of any Holder (other than a Participating Broker-Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange or (iv) in
the
written opinion of Special 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 Special 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 commercially
reasonable 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 commercially reasonable 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 commercially reasonable 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 commercially reasonable 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
Dealer Managers 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 135th
day following
the Closing Date,
(ii)
the Exchange
Offer Registration Statement is not declared effective on or prior to the 220th
day following the Closing Date,
(iii)
the
Registered 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 include information pursuant to Section 3 hereof) 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 Dealer Managers 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
(h) The
Company
covenants and agrees that, pursuant to the Registration Statement, it will
offer
the holders of the Company’s 7.75% Senior Notes due 2032 issued in exchange for
CGP’s 7.75% Senior Debentures due October 15, 2035 the right to exchange such
notes for the Company’s notes that have the same terms and CUSIP as (and will
constitute a part of the same series as) the Company’s existing 7.75% Medium
Term Notes due January 15, 2032, (CUSIP No.:
00000XXX0).
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) (i) 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 and (y) in the case
of
a Shelf Registration, be available for the sale of the Registrable Securities
by
the selling Holders thereof, and which Registration Statement and each
Prospectus contained therein or furnished pursuant to Section 2 or Section
3
hereof and any further amendments or supplements to any such Registration
Statement or Prospectus, when it becomes effective or is filed with the SEC,
as
the case may be, and, in the case of an Underwritten
Offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will (A) comply as to form in all
material respects with the applicable requirements of the 1933 Act and the
TIA
and the rules and regulations promulgated thereunder, (B) will not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading,
(C) include all financial statements required by the SEC to be filed therewith,
and any documents incorporated by reference in such Registration Statement
and
Prospectus, when they become or became effective or are or were filed with
the
SEC, as the case may be, will conform or conformed in all material respects
to
the requirements of the 1933 Act or the 1934 Act, as applicable, and none of
such documents will contain or contained an untrue statement of a material
fact
or will omit or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) use
commercially reasonable 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 covered
by
a Shelf Registration Statement, to counsel for the Dealer Managers and to
Special Counsel for such Holders and to each Underwriter of an Underwritten
Offering of Registrable Securities, if any, without charge, as many copies
of
each Prospectus relating to such Registrable Securities, including each
preliminary Prospectus and any amendment or supplement thereto 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
commercially reasonable 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 the
disposition in each such jurisdiction of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related
Prospectus; 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, Special
Counsel for the Holders and counsel for the Dealer Managers promptly (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 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 will be filed with the SEC;
(f) use
its
commercially reasonable 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 covered
by
a Shelf Registration Statement, without charge, at least one conformed copy
of
such Shelf 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 three (3) 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 commercially reasonable 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 covered by a
Shelf Registration Statement to suspend use of the Prospectus forming a part
of
such Shelf Registration Statement 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) in
the case of an
Exchange Offer Registration Statement, 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 Dealer Managers and their counsel and make such of the
representatives of the Company as shall be reasonably requested by the Dealer
Managers or their counsel available for discussion of such document, and shall
not at any time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a 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 Dealer Managers and their
counsel shall not have previously been advised and furnished a copy or to which
the Dealer Managers 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 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
commercially reasonable 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;
(p) in
the case of a
Shelf Registration, enter into such customary agreements and take all such
other
commercially reasonable 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; and
(q) in
the case of a
Shelf Registration, a reasonable time prior to the filing of any Shelf
Registration Statement, any Prospectus, any amendment to a Shelf Registration
Statement or amendment or supplement to a Prospectus, provide a reasonable
number of copies of such document to the Dealer Managers and the Special
Counsel, and use its reasonable best efforts to reflect in each such document
when so filed with the SEC such comments as the Dealer Managers or the Special
Counsel, if any, reasonably shall propose within five (5) Business Days of
the
delivery of such copies to the Dealer Managers and any Special
Counsel.
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 Registered 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 Registered 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 Dealer Managers 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 Dealer Managers or with the reasonable request
in
writing to the Company by one or more broker-dealers who certify to the Dealer
Managers 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 Xxxxxxx, Xxxxx & Co. 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
Dealer Managers 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
Dealer Managers 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 Dealer Managers, each Holder
and each Person, if any, who controls the Dealer Managers 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 Dealer Managers 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 Dealer Managers or any Holder
furnished to the Company in writing by the Dealer Managers or any selling Holder
expressly for use therein. 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
Dealer Managers 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 Dealer Managers 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
Dealer Managers 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),
provided,
however,
that no such
Holder shall be required to undertake liability to any Person under this Section
5(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Holder from the sale of such Holder's Registrable Securities
pursuant to such registration.
(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 Dealer Managers and all Persons, if any, who control the Dealer Managers
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 Dealer Managers and Persons who control
the
Dealer Managers, such firm shall be designated in writing by the Dealer
Managers. 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. 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 (i) such settlement includes
an unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or
on behalf of any indemnified party.
(d) If
the
indemnification provided for in 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 Dealer Manager Agreement,
any
Holder or any Person controlling the Dealer Managers 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 Dealer Managers, the address set forth in the Dealer Manager
Agreement; and (ii) if to the Company, initially at the Company’s address set
forth in the Dealer Manager 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
Dealer Manager 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 Dealer Managers 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 commercially 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 Dealer Managers, 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.
|
EL
PASO CORPORATION
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President and Treasurer
|
|
Confirmed
and accepted as of the date first above written:
XXXXXXX,
XXXXX & CO.
By:
/s/
Xxxxxxx, Sachs & Co.
(Xxxxxxx,
Xxxxx & Co.)
CITIGROUP
GLOBAL MARKETS INC.
By:
/s/
Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title: Managing
Director
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Schedule
I
|
Title
of
Outstanding CGP Notes to be exchanged
|
Aggregate
Principal
Amount
Outstanding
|
CUSIP
Number
|
Title
of
Securities as offered consideration
|
|
6.50%
Notes
due 2006
|
$109,500,000
|
000000XX0
|
6.50%
Senior
Notes due 2006
|
|
7½%
Notes due
2006
|
$204,910,000
|
000000XX0
|
7½%
Senior
Notes due 2006
|
|
6.50%
Senior
Debentures due June 1, 2008
|
$200,000,000
|
000000XX0
|
6.50%
Senior
Notes due 2008
|
|
7.625%
Notes
due 2008
|
$215,000,000
|
000000XX0
|
7.625%
Senior
Notes due 2008
|
|
6.375%
Senior
Debentures due February 1, 2009
|
$200,000,000
|
000000XX0
|
6.375%
Senior
Notes due 2009
|
|
7.75%
Notes
due 2010
|
$400,000,000
|
000000XX0
|
7.75%
Senior
Notes due 2010
|
|
10¾%
Senior
Debentures due October 1, 2010
|
$56,573,000
|
000000XX0
|
10¾%
Senior
Notes due 2010
|
|
9⅝%
Senior
Debentures due May 15, 2012
|
$150,000,000
|
000000XX0
|
9⅝%
Senior
Notes due 2012
|
|
6.70%
Senior
Debentures due February 15, 2027
|
$200,000,000
|
000000XX0
|
6.70%
Senior
Notes due 2027
|
|
6.95%
Senior
Debentures due June 1, 2028
|
$200,000,000
|
000000XX0
|
6.95%
Senior
Notes due 2028
|
|
7.75%
Senior
Debentures due October 15, 2035
|
$150,000,000
|
000000XX0
|
7.75%
Senior
Notes due 2032
|
|
7.42%
Senior
Debentures due February 15, 2037
|
$200,000,000
|
000000XX0
|
7.42%
Senior
Notes due 2037
|
