EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
dated as of
March 4, 2003
among
NORTHWEST PIPELINE CORPORATION
and
XXXXXX BROTHERS INC.
on behalf of itself and the Initial Purchasers listed on Schedule I
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of March 4, 2003, by and among Northwest Pipeline Corporation
(the "COMPANY"), a corporation duly organized and existing under the laws of the
State of Delaware, and Xxxxxx Brothers Inc., acting on behalf of itself and the
several initial purchasers listed on Schedule I hereto, (the "INITIAL
PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated as of
February 27, 2003, by and among the Company and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of $175,000,000 principal amount of its 81/8% Senior Notes due 2010
(the "SECURITIES"). The Notes are to be issued pursuant to the provisions of an
Indenture dated as of March 4, 2003 (as amended, supplemented or otherwise
modified from time to time, the "INDENTURE") by and among the Company and
JPMorgan Chase Bank, as trustee (the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to each Initial Purchaser and its
direct and indirect transferees the registration rights with respect to the
Securities set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase 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 0000 Xxx.
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"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"EXCHANGE DATES" shall have the meaning set forth in Section 2(a)(ii).
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for all Securities that are Transfer Restricted Securities
pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement on Form S-4 (or, if applicable, on another appropriate form) relating
to an offering of Exchange Securities pursuant to an Exchange Offer and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean any securities issued by the Company
to be offered to Holders in exchange for Securities (pursuant to the Exchange
Offer or otherwise) pursuant to an Exchange Offer Registration Statement
containing terms identical 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 and (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.
"HOLDER" shall mean each Initial Purchaser, for so long as it owns any
Transfer Restricted Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Transfer Restricted
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.
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"INITIAL PURCHASERS" 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 Transfer Restricted Securities;
provided that, for purposes of Section 6(b), whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the 1933 Act)(other than
the Initial Purchasers or subsequent Holders of Transfer Restricted Securities
if such subsequent Holders are deemed to be such affiliates solely by reason of
their holding of such Transfer Restricted 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
Transfer Restricted 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.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"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
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or Transfer Restricted Securities), (iii) all expenses of any Person in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees
and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) 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 and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Transfer Restricted
Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or the Transfer Restricted
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 Transfer Restricted Securities (but no other
securities unless approved by the Holders of a majority of the aggregate
principal amount of outstanding Transfer Restricted 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.
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"TIA" shall have the meaning set forth in Section 3(1) hereof.
"TRANSFER RESTRICTED SECURITIES" shall mean each outstanding Security
until: (i) the date on which such Security has been exchanged by a Person other
than a broker-dealer for an Exchange Security in the Exchange Offer; (ii)
following the exchange by a broker-dealer in the Exchange Offer of a Security
for an Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement; (iii) the date on which such Security has been effectively registered
under the 1933 Act and disposed of in accordance with the Shelf Registration
Statement; or (iv) the date on which such Security is distributed to the public
or is saleable pursuant to Rule 144 under the 1933 Act.
"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 Transfer Restricted 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
90 days following the Closing Date covering the offer by the Company to
the Holders to exchange all of the Transfer Restricted 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 180 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 Exchange Offer. The Company shall
commence the Exchange Offer promptly after the Exchange Offer
Registration Statement has been declared effective by the SEC and use
its commercially reasonable efforts to have the Exchange Offer
consummated not later than 30 Business Days, or longer, if required by
the federal securities laws, after such effective date. The Company
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
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(i) that the Exchange Offer is being made
pursuant to this Registration Rights Agreement and that all
Transfer Restricted 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 Transfer Restricted 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 Transfer
Restricted Security exchanged pursuant to the Exchange Offer
will be required to surrender such Transfer Restricted
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 Transfer Restricted Securities
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Transfer Restricted
Securities exchanged.
As soon as practicable after the last Exchange Date, the
Company shall:
(A) accept for exchange Transfer
Restricted Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange
Offer; and
(B) deliver, or cause to be delivered,
to the Trustee for cancellation all Transfer
Restricted Securities or portions thereof so accepted
for exchange by the Company and issue, and cause the
Trustee to promptly authenticate and deliver to each
Holder, an Exchange Security equal in aggregate
principal amount to the aggregate principal amount of
the Transfer Restricted Securities surrendered by
such Holder.
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The Company shall use its commercially reasonable efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other
applicable laws and regulations in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC. The Company shall
inform the Initial Purchasers of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right, subject to applicable law, to contact such Holders and
otherwise facilitate the tender of Transfer Restricted Securities in
the Exchange Offer.
If, during the period the Exchange Offer Registration
Statement is effective, an event occurs which makes any statement made
in such Exchange Offer Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Exchange Offer Registration Statement or Prospectus in
order to make the statements therein 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 Transfer
Restricted 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 light of the circumstances under
which they were made, not misleading. The Company agrees to notify the
Holders to suspend the exchange of the Transfer Restricted 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 is not (A) required to file the
Exchange Offer Registration Statement or (B) permitted to consummate
the Exchange Offer because the Exchange Offer is not permitted by
applicable law or applicable interpretation of the Staff of the SEC; or
(ii) any Holder of Transfer Restricted Securities notifies the Company
prior to the 20th day following the consummation of the Exchange Offer
that: (A) it is prohibited by law or applicable interpretation of the
Staff of the SEC from participating in the Exchange Offer, (B) it may
not resell the Exchange Securities acquired by it in the Exchange Offer
to the public without delivering a Prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales
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or (C) it is a broker-dealer and owns Securities acquired directly from
the Company or an affiliate of the Company, the Company shall (x) use
its commercially reasonable efforts to file with the SEC within 60 days
after such filing obligation arises (or, if later, the date by which
the Company is obligated to file an Exchange Offer Registration
Statement) 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 Transfer
Restricted Securities and (y) use its commercially reasonable efforts
to cause such Shelf Registration Statement to become effective within
180 days after such filing obligation arises (or, if later, the date by
which the Company is obligated to use its commercially reasonable
efforts to have the Exchange Offer Registration Statement declared
effective). If the Company is required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (ii)
of the preceding sentence, the Company shall use it 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 Transfer Restricted 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 Transfer Restricted Securities held by the Holders who must
deliver the related Prospectus. Subject to the following paragraph, 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) with respect to the
Transfer Restricted Securities or such shorter period that will
terminate when all of the Transfer Restricted Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Transfer Restricted 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
Transfer Restricted Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
Notwithstanding anything to the contrary in this Agreement,
the Company, upon advising the Initial Purchasers and each Holder, may
suspend the use of the Prospectus included in any Shelf Registration
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Statement in the event that and for periods of time not to exceed 30
consecutive days and for no more than 60 days during any 365 day period
in which such suspensions are in effect (each such period, a
"SUSPENSION PERIOD") if (i) an event or circumstance occurs and is
continuing as a result of which the Shelf Registration Statement, the
related Prospectus or any document incorporated therein by reference as
then amended or supplemented or proposed to be filed would, in the good
faith judgment of the Company, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading and (ii) (A) the Company determines in
its good faith judgment that the disclosure of such event at such time
would have a material adverse effect on the business, operations or
prospects of the Company or (B) the disclosure otherwise relates to a
material business transaction or development which has not been
publicly disclosed; provided, however, that upon the termination of
such Suspension Period, the Company shall promptly advise the Initial
Purchasers and each Holder that such Suspension Period has been
terminated.
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Securities pursuant to
a Shelf Registration Statement.
(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 Transfer
Restricted 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 Transfer
Restricted Securities pursuant to such Registration Statement may
legally resume.
(e) The Company and the Initial Purchasers 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:
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(i) the Exchange Offer Registration Statement is
not filed with the SEC on or prior to the 90th day following
the Closing Date,
(ii) the Exchange Offer Registration Statement is
not declared effective on or prior to the 180th day following
the Closing Date,
(iii) the Exchange Offer is not completed on or
prior to the 30th Business Day following the date the Exchange
Offer Registration Statement is declared effective, or
(iv) the Shelf Registration Statement is required
to be filed but is not filed or declared effective within the
respective time periods set forth herein or is declared
effective but thereafter ceases to be effective or usable
(other than during a Suspension Period) prior to the
expiration of the period referred to in Rule 144(k) with
respect to the Transfer Restricted Securities other than after
the Transfer Restricted Securities have been disposed of under
the Shelf Registration Statement or cease to be Transfer
Restricted 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 Transfer Restricted Securities and the affected
Exchange Securities, as applicable. The rate of Liquidated Damages will
be $0.05 per week per $1,000 principal amount of Transfer Restricted
Securities and affected Exchange Securities held by such Holder for the
first 90-day period immediately following the occurrence of a
Registration Default, increasing to by an additional $0.05 per week per
$1,000 principal amount of Transfer Restricted Securities and affected
Exchange Securities with respect to each subsequent 90-day period
thereafter up to a maximum amount of Liquidated Damages for all
Registration Defaults of $0.50 per week per $1,000 principal amount of
Transfer Restricted Securities and affected Exchange Securities, 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
Transfer Restricted Securities and Exchange Securities otherwise become
freely transferable by Holders other than affiliates of the Company
without further registration under the 1933 Act.
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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 Transfer
Restricted Securities or Exchange Securities who is not entitled to the
benefits of the Shelf Registration Statement (i.e., such Holder has not
elected to including information) shall not be entitled to Liquidated
Damages with respect to a Registration Default that pertains to the
Shelf Registration Statement.
(f) The Company shall notify the Trustee within one Business
Day after each date on which an event occurs in respect of which
Liquidated Damages are required to be paid. Any amounts of Liquidated
Damages due pursuant to this Section 2 will be payable in addition to
any other interest payable from time to time with respect to the
Transfer Restricted 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 Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as possible (provided, however, that the Company
shall not be required to take actions more promptly than required by Sections
2(a) and 2(b)):
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Transfer Restricted Securities by the
selling Holders thereof and (z) comply as to form in all material
respects with the applicable
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requirements of the 1933 Act and rules and regulations promulgated
thereunder and include all financial statements required by the SEC to
be filed therewith, and use 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 Transfer Restricted Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Transfer Restricted Securities, to counsel for the Initial
Purchasers and to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Transfer Restricted Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the
Transfer Restricted 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 Transfer Restricted Securities and any such
Underwriters in connection with the offering and sale of the Transfer
Restricted 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 Transfer Restricted Securities under all applicable state
securities or blue sky laws of such jurisdictions as any Holder of
Transfer Restricted Securities covered by a Registration Statement
shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, and to
cooperate with such Holders in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. and
do any and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Transfer Restricted Securities owned by
such Holder; provided, however, that the Company shall not be required
to (i) qualify as a foreign corporation or as a dealer in
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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
Transfer Restricted Securities, counsel for the Holders and counsel for
the Initial Purchasers (or, if applicable, separate counsel for the
Holders) promptly and, if requested by any such Holder or counsel,
confirm such advice in writing, (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Transfer Restricted Securities covered thereby, the Company receives
any notification with respect to the suspension of the qualification of
the Transfer Restricted 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 or Prospectus
in order to make the statements therein not misleading, (vi) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate and (vii) of any Suspension
Period;
(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 Transfer Restricted Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Transfer Restricted Securities to facilitate the
timely preparation
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and delivery of certificates representing Transfer Restricted
Securities (if such Securities are certificated) to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws) and enable such Transfer Restricted Securities to be
in such denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders may reasonably
request at least two Business Days prior to the closing of any sale of
Transfer Restricted Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) or (vii) 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 Transfer Restricted Securities, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The Company agrees to notify the Holders to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and the Holders hereby agree to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission and has furnished copies of the amended
or supplemented Prospectus to the Holders or until the Company notifies
the Holders that the sale of the Transfer Restricted Securities may be
resumed;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus (except any amendment or
supplement solely to add additional selling securityholders), provide
copies of such document to the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and
their counsel) and make such of the representatives of the Company as
shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the
Holders or their counsel) available for discussion of such document,
and shall not at any time file or make any amendment to the Shelf
Registration Statement, any Prospectus or any amendment of or
supplement to a Shelf Registration Statement or a Prospectus (except
any amendment or supplement solely to add additional selling
securityholders) of which the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders or
their counsel) shall not have previously been advised and furnished a
copy or to which the Initial Purchasers or their counsel (and, in the
case of a Shelf
15
Registration Statement, the Holders or their counsel) shall reasonably
object;
(k) obtain a CUSIP number for all Exchange Securities or
Transfer Restricted 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 Transfer Restricted
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 Transfer
Restricted 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 financial and other records, pertinent documents
and properties of the Company, and cause the respective officers,
directors and employees of the Company to supply all information
reasonably requested by any such representative, Underwriter, attorney
or accountant in connection with a Shelf Registration Statement, in
each case that would customarily be reviewed or examined in connection
with "due diligence" review of the Company;
(n) use its reasonable best efforts to cause the Exchange
Securities to continue to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 1933 Act), if the Transfer Restricted Securities
have been rated;
(o) if reasonably requested by any Holder of Transfer
Restricted Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Company has received notification of
the matters to be incorporated in such filing; and
16
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those reasonably requested by the Holders of a
majority of the Transfer Restricted Securities being sold thereunder)
in order to expedite or facilitate the disposition of such Transfer
Restricted 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 Transfer Restricted 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
Transfer Restricted Securities being sold under such Shelf Registration
Statement, such Underwriters and their respective counsel) addressed to
each selling Holder and Underwriter of Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted Securities being sold under such Shelf
Registration Statement or by the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Transfer Restricted Securities to furnish to the
Company such information regarding the Holder and the proposed
distribution by such Holder of such Transfer Restricted
17
Securities as the Company may from time to time reasonably request in
writing. No Holder of Transfer Restricted Securities may include its
Transfer Restricted Securities in such Shelf Registration Statement
unless and until such Holder furnishes such information to the Company.
Each Holder including Transfer Restricted 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 Transfer Restricted 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 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 Securities Act or, if
such Person is an "affiliate", that such Holder will comply with the
registration and prospectus delivery requirements of the Securities 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
or of a Suspension Period, such Holder will forthwith discontinue
disposition of Transfer Restricted 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 Transfer Restricted Securities current at the
time of receipt of such notice.
If the Company shall give any such notice to suspend the
disposition of Transfer Restricted 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
18
Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions.
The Holders of Transfer Restricted Securities covered by a
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted 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 Transfer
Restricted Securities included in such offering, provided that such
Underwriters shall be reasonably acceptable to the Company.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The parties hereto understand that the Staff of the SEC
has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating
Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
The Company understands that it is currently the Staff's
position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company agrees that the provisions of
this Agreement as they relate to a Shelf Registration shall also apply
to an Exchange Offer Registration to the extent, and with such
reasonable modifications thereto as may be, reasonably requested by the
Initial Purchasers 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:
19
(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
Initial Purchasers or with the reasonable request in writing
to the Company by one or more broker-dealers who certify to
the Initial Purchasers 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 Xxxxxx Brothers
Inc. 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 Initial Purchasers 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 Initial Purchasers 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
Initial Purchasers, each Holder and each Person, if any, who controls
the
20
Initial Purchasers 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 Initial Purchasers 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 Transfer Restricted 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 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 Initial Purchasers or any Holder furnished
to the Company in writing by the Initial Purchasers or any selling
Holder expressly for use therein; provided that the foregoing indemnity
with respect to any Prospectus shall not inure to the benefit of any
Holder from whom the Person asserting any such losses, claims, damages
or liabilities purchased Securities, or any Person controlling such
Holder, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent by, or delivered on behalf of, such
Holder to such Person at or prior to the written confirmation of the
sale of the Securities to such Person, if the final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability. In connection with any
Underwritten Offering permitted by Section 3, the Company will also
enter into an underwriting agreement pursuant to which the Company will
agree to indemnify the Underwriters, if any, selling brokers, dealers
and similar securities industry professionals participating in such
Underwritten Offering, their officers and directors and each Person who
controls such Persons (within the meaning of either Section 15 of the
1933 Act or Section 20 of the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement for such Underwritten
Offering.
21
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers and the Holders
pursuant to Section 5(a), but only with reference to information
relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "INDEMNIFIED PARTY") shall
promptly notify the Person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing, but the failure to so promptly
notify the Indemnifying Party shall not negate the obligation to so
indemnify such Indemnified Party unless the Indemnifying Party is
materially prejudiced by such delay, and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and, in
the opinion of counsel to the Indemnifying Party, representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Initial Purchasers and all Persons, if any, who
control the Initial Purchasers 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
22
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 Initial Purchasers and Persons who control the
Initial Purchasers, such firm shall be designated in writing by the
Initial Purchasers. In such case involving the Holders and such Persons
who control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases, such firm shall be designated by
the Company. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which such Indemnified
Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an Indemnified Party
or insufficient in respect of any losses, claims, damages or
liabilities, then each Indemnifying Party under such paragraph, in lieu
of indemnifying such Indemnified Party thereunder, shall contribute to
the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or
parties on the one hand and of the Indemnified Party or parties on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company
and the Holders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Holders' respective obligations to contribute pursuant to this Section
5(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities of the applicable Holder that were
registered pursuant to a Registration Statement.
23
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5(d) 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
contribute any amount in excess of the amount by which the total price
at which Transfer Restricted 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 Initial Purchasers, any
Holder or any Person controlling the Initial Purchasers 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 Transfer Restricted 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 Transfer Restricted 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
24
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 Transfer Restricted 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 Transfer
Restricted 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, facsimile 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 Initial Purchasers, the address set
forth in the Purchase Agreement; and (ii) if to the Company, initially
at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 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 receipt is acknowledged, if sent by facsimile; 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
Transfer Restricted Securities; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Securities in violation of the terms of the
Securities and the Purchase Agreement. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities
shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted 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
25
Person shall be entitled to receive the benefits hereof. The Initial
Purchasers shall have no liability or obligation to the Company with
respect to any failure by a Holder to comply with, or any breach by any
other Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases and Sales of Securities. The Company shall not,
and shall use its reasonable best efforts to cause its affiliates (as
defined in Rule 405 under the 0000 Xxx) not to, purchase and then
resell or otherwise transfer any Securities unless such resold or
transferred Securities have an appropriate legend regarding transfer
restrictions and the date of such resale or transfer.
(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 Initial Purchasers, 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 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.
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NORTHWEST PIPELINE
CORPORATION
By ______________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXX BROTHERS INC.
on behalf of itself and the
several Managers listed
on Schedule I hereto
By: ___________________________
Name:
Title:
SCHEDULE I
Initial Purchasers
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Credit Lyonnais Securities (USA) Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Scotia Capital (USA) Inc.
TD Securities (USA) Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
28
