Exhibit 4(b)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of December 11, 2001 by and among Baltimore Gas and Electric Company, a
Maryland corporation (the "Company"), and Xxxxxx Brothers Inc., on behalf of
itself and as representative of Banc of America Securities LLC, BNY Capital
Markets, Inc., Xxxxxxx Xxxxx Barney Inc., Scotia Capital (USA), Inc., and
SunTrust Capital Markets, Inc. ( the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated December 4,
2001 (the "Purchase Agreement"), by and among the Company, as issuer of
$300,000,000 aggregate principal amount of 5.25% Notes due 2006 (the "Notes"),
and the Initial Purchasers, which provide for, among other things, the sale by
the Company to the Initial Purchasers of the Notes specified therein. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery 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:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" has the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section -3(t)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day
on which banking institutions in The City of New York or the City of Baltimore,
Maryland are authorized or required by law or executive order to remain closed.
"Closing Date" shall mean December 11, 2001, the initial date of delivery
of the Notes from the Company to the Initial Purchasers.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Notes" shall mean the 5.25% Notes due December 15, 2006 issued by
the Company under the Indenture containing terms identical in all material
respects to the Notes except that (i) interest thereon shall accrue from the
last date on which interest was paid or duly provided for on the Notes or, if no
such interest has been paid, from the date of their original issue, (ii) they
will not contain terms with respect to transfer restrictions under the
Securities Act, and (iii) they will not provide for any Special Interest Premium
thereon.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes held by each such Holder for a like amount
of Exchange Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its successors, assigns and direct and indirect
transferees and others who become registered owners of Registrable Notes under
the Indenture.
"Indenture" shall mean the Indenture, dated as of July 1, 1985 and
supplemented as of October 1, 1987 and January 26, 1993, between the Company, as
issuer, and Bank of New York, as trustee, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Xxxxxx Brothers Inc., Banc of America
Securities LLC, BNY Capital Markets, Inc., Xxxxxxx Xxxxx Barney Inc., Scotia
Capital (USA), Inc., and SunTrust Capital Markets, Inc..
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes or Exchange Notes, as the case may be.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Parent" shall mean Constellation Energy Group, Inc., the sole holder of
all of the common stock of the Company.
"Participating Broker-Dealer" shall have the meaning set forth in
Section-3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof or other legal entity.
"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 Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section-3(o) hereof.
"Registration Notes" shall mean the Notes, until the earliest to occur of
(a) the date on which any Note has been exchanged by a Person other than a
Participating Broker-Dealer for Exchange Notes in the Exchange Offer, (b)
following the exchange by a Broker-Dealer in the Exchange Offer of any Note for
one or more Exchange Notes, the date on which such Exchange Notes are sold to a
purchaser in accordance with the Exchange Offer Registration Statement, (c) the
date on which any Note has been registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement and (d) the date on which
any Note is eligible to be distributed to the public pursuant to Rule 144(k)
under the Securities Act.
"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 or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters and
Holders as a group in connection with blue sky qualification of any of the
Exchange Notes or Registrable Notes) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, Notes sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the fees and disbursements
of counsel for the Company and of the independent certified public accountants
of the Company and its subsidiaries, including the expenses of any "cold
comfort" letters required by or incident to the performance of and compliance
with this Agreement, (vi) the reasonable fees and expenses of the Trustee and
its counsel and any exchange agent or custodian, and (vii) the reasonable fees
and expenses of any special experts retained by the Company in connection with
any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes 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
documents incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Closing Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes (except Registrable Notes which have been, or will
be, exchanged by a Person for Exchange Notes in the Exchange Offer and
Registrable Notes which the Holders have elected not to include in such Shelf
Registration Statement or the Holders of which have not complied with their
obligations under the penultimate paragraph of Section 3 hereof or under the
first paragraph of Section 2(b) hereof) on an appropriate form under Rule 415
under the Securities 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 documents incorporated by reference
therein
"Special Interest Premium" shall have the meaning set forth in Section 2(e)
hereof.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
shall, for the benefit of the Holders, at the Company's cost, use commercially
reasonable efforts to (i) file with the SEC within 90 calendar days after the
Closing Date an Exchange Offer Registration Statement on an appropriate form
under the Securities Act relating to the Exchange Offer, (ii) cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act by the SEC not later than the date which is 180 calendar days
after the Closing Date, and (iii) provided such Exchange Offer Registration
Statement has been declared effective under the Securities Act by the SEC,
commence the Exchange
Offer and keep the Exchange Offer open for not less than
30 days, or longer if required by applicable law, after the date on which such
Registration Statement was declared effective by the SEC (such period referred
to herein as the "Exchange Period") and at the termination thereof issue,
Exchange Notes in exchange for all Registrable Notes tendered prior thereto in
the Exchange Offer.
Each Holder of Registrable Notes to be exchanged in the Exchange Offer
shall be required, as a condition to participating in the Exchange Offer, to
represent that it acquired the Exchange Notes in the ordinary course of such
Holder's business and that it (i) is not an Affiliate of the Company, (ii) does
not hold any Notes to be exchanged for Exchange Notes in the Exchange Offer that
were acquired other than in the ordinary course of business, (iii) is not a
broker-dealer tendering Registrable Notes acquired directly from the Company,
(iv) at the time of the Exchange Offer, has no arrangements or understandings
with any Person to participate in the Exchange Offer for the purpose of
distributing the Exchange Notes.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) utilize the services of the Depositary for the Exchange Offer with
respect to Notes represented by a global certificate;
(iii) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business, New York City time, on the last Business Day of
the Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Notes delivered for
exchange, and a statement that such Holder is withdrawing his election to have
such Registrable Notes exchanged;
(iv) notify each Holder that any Registrable Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement (except in the case
of the Initial Purchasers and Participating Broker-Dealers as provided herein);
and
(v) otherwise comply in all material respects with all applicable laws and
regulations relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Registrable Notes or portions thereof duly
tendered and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and letter of
transmittal;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid or duly provided for on the
Note surrendered in exchange therefor or, if no interest has been paid on such
Note, from the date of original issue of such Note. To the extent not prohibited
by any judicial order, judgment, law, regulation or applicable interpretation of
the staff of the SEC, the Company shall use commercially reasonable efforts to
complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange 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 the conditions
referred to in Section 2(b)(i) and (ii) below and those conditions that are
customary in similar exchange offers, except as may be required by applicable
law. Each Holder of Registrable Notes who wishes to exchange such Registrable
Notes for Exchange Notes in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder, representations that (i) it is not an Affiliate of the Company, (ii) it
is not a broker-dealer tendering Registrable Notes acquired directly from the
Company, (iii) the Notes being exchanged, and the Exchange Notes to be received,
by it have been or are being acquired in the ordinary course of its business and
(iv) at the time of the Exchange Offer, it has no arrangements or understandings
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes. The Company shall inform the Initial
Purchasers, after consultation with the Trustee, of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders in order to facilitate the tender of
Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes held by Initial Purchasers and
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes held by any other Holder pursuant to
Section 2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law, regulation or
in currently prevailing interpretations thereof by the staff of the SEC or after
the filing of the Exchange Offer Registration Statement, the Company reasonably
determines that, the Company is not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof, (ii) the Exchange Offer is not consummated
within 210 days after the Closing Date or (iii) any Holder of Registrable Notes
that is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) shall notify the Company prior to the 20th day following the
commencement of the Exchange Offer (A) that such Holder was prohibited by
applicable law or SEC policy from participating in the Exchange Offer, or (B)
that such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Participating Broker-Dealer and holds Notes acquired directly from
the Company or one of its Affiliates (any of the events specified in (i), (ii)
or (iii) being a "Shelf Registration Event", and the date of occurrence
thereof,
the "Shelf registration EventDate"), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section 2(a), as the case may be,
the Company shall promptly notify the Holders in writing thereof and shall, at
its cost, file as promptly as practicable after such Shelf Registration Event
Date and, in any event, within 90 days after such Shelf Registration Event Date,
a Shelf Registration Statement providing for the sale by the Holders of all of
the Registrable Notes (other than Registrable Notes owned by Holders who have
elected not to include such Registrable Notes in such Shelf Registration
Statement or who have not complied with their obligations under the penultimate
paragraph of Section 3 hereof or under this paragraph or by Holders who have
exchanged or will be exchanging, their Notes for Exchange Notes in the Exchange
Offer pursuant to Section 2(a)), and shall use its commercially reasonable
efforts to cause such Shelf Registration Statement to be declared effective by
the SEC as soon as practicable and in any event, on or before the 120th day
after the Shelf Registration Event Date. No Holder of Registrable Notes shall be
entitled to include any of its Registrable Notes in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company in writing, within 10 days after receipt of a request
therefor, such information as the Company may, after conferring with counsel
with regard to information relating to Holders that would be required by the SEC
to be included in such Shelf Registration Statement or Prospectus included
therein, reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company, without request and as soon as
practicable, all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective and the Prospectus usable
for resales for the earlier of: (x) the expiration of the Rule 144(k) Period or
(y) such time as all of the Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Notes (the period from the effective date of the Shelf Registration
Statement until the earlier of the events described in clauses (x) or (y) being
the "Effectiveness Period"). The Company will, in the event a Shelf Registration
Statement is declared effective, provide to each Holder of Registrable Notes
covered thereby, a reasonable number of copies of the Prospectus which is a part
of the Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and take any other action required to permit
unrestricted resales of the Registrable Notes. 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 Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Notes covered by such Shelf
Registration Statement copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a)
and/or 2(b) hereof and will reimburse the Initial Purchasers for the
reasonable fees and disbursements Xxxxxx Xxxxxx & Xxxxxxx incurred in
connection with the Exchange Offer. Except as provided herein, each Holder
shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes,
if any, relating to the sale or disposition
of such Holder's Registrable Notes pursuant to the Shelf Registration
Statement.
(d) Effective Registration Statement. 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 Notes
pursuant to such Exchange Offer Registration Statement or 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, or if the Company has provided notice to Holders of an event
described in Section 3(f)(v), such Exchange Offer Registration Statement or
Shelf Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Notes pursuant to such Registration Statement may legally resume.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the
SEC on or prior to the 90th day after the Closing Date, then, commencing on
the 91st day after the Closing Date, a special interest premium (the
"Special Interest Premium") shall accrue on the principal amount of the
Notes at a rate of 0.25% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day after the Closing Date,
then, commencing on the 181st day after the Closing Date, a Special
Interest Premium shall accrue on the principal amount of the Notes at a
rate of 0.25% per annum;
(iii) the Company has not exchanged Exchange Notes for all Notes
validly tendered, in accordance with the terms of the Exchange Offer, on or
prior to the 210th day after the Closing Date, then, commencing on the
211th day after the Closing Date, a Special Interest Premium shall accrue
on the principal amount of the Notes at the rate of 0.25% per annum;
(iv) a Shelf Registration Event occurs and the Shelf Registration
Statement is not filed on or prior to the 90th day after the Shelf
Registration Event Date, then, commencing on the 91st day after the Shelf
Registration Event Date, a Special Interest Premium shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum;
(v) a Shelf Registration Event occurs and the Shelf Registration
Statement is not declared effective on or prior to the 120th day after the
Shelf Registration Event Date, then, commencing on the 121st day after the
Shelf Registration Event Date, a Special Interest Premium shall accrue on
the principal amount of the Notes at a rate of 0.25% per annum;
(vi) the Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be continuously effective or
the Prospectus contained in such Shelf Registration Statement ceases to be
usable for resales (A) at any time prior to the expiration of the
Effectiveness Period or (B) if related to corporate developments, public
filings with the SEC or similar events or because the Prospectus contains
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to
make the statements
therein not misleading, and such failure continues for more than 60 days
(whether or not consecutive and whether or not arising out of a single or
multiple circumstances) in any twelve-month period, then the Special
Interest Premium shall accrue on the principal amount of the Notes at a
rate of 0.25% per annum commencing on the day that (in the case of (A)
above), or the 61st (cumulative) day after (in the case of (B) above), such
Shelf Registration Statement ceases to be effective or the Prospectus
ceases to be usable for resales;
provided, however, that the aggregate amount of the Special Interest
Premium in respect of the Notes may not exceed 1.0% per annum (regardless
of whether multiple events triggering a Special Interest Premium under this
subsection (e) exist);
provided, further, however, that on the date of (1) the filing of the
Exchange Offer Registration Statement (in the case of clause (i) above),
(2) the effectiveness of the Exchange Offer Registration Statement (in the
case of clause (ii) above), (3) the exchange of Exchange Notes for all
Notes validly tendered (in the case of clause (iii) above), (4) the filing
of the Shelf Registration Statement ( in the case of clause (iv) above, (5)
the effectiveness of the Shelf Registration Statement (in the case of
clause (v) above), and (6) the earlier of (y) such time as the Shelf
Registration Statement which had ceased to remain effective or the
Prospectus which had ceased to be usable for resales again becomes
effective and usable for resales, as applicable, and (z) the expiration of
the Effectiveness Period (each in the case of clause (vi) above), the
Special Interest Premium on the principal amount of the Notes as a result
of such clause (or the relevant subclause thereof) shall cease to accrue
and the interest rate shall return to the rate of 5.25% per annum;
provided, further, however, that if the Company shall request Holders to
provide the information required by the SEC for inclusion in the Shelf
Registration Statement, the Notes owned by Holders who do not provide such
information when required pursuant to Section 2(b) will not be entitled to
any Special Interest Premium, regardless of the existence of any events
which would otherwise trigger a Special Interest Premium under this
subsection (e) for such Holders.
Any Special Interest Premium due pursuant to Section 2(e)(i),
(ii), (iii), (iv), (v), or (vi) above will be payable in cash on the next
succeeding June 15 or December 15, as the case may be, to eligible Holders
(as determined under this subsection (e)) on the relevant record dates for
the payment of interest pursuant to the Indenture.
(f) Limitation of Liability. The Holders agree that the Special
Interest Premium as provided for in Section 4(e) shall be the sole and
exclusive remedy and measure of damages for the Company's failure to
satisfy its obligations under Section 2(a) and 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Sections 2(a) and 2(b) hereof within the
relevant time period specified in Section 2 hereof on the appropriate form
under the Securities
Act, which form shall (i) be selected by the Company,
(ii) in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Notes, and
(iii) comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; and use its commercially reasonable efforts to
cause such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, the Prospectus to be
usable for resales) in accordance with Section 2 hereof; provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to
Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer, as the case
may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed; and the
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if
the Majority Holders of the Registrable Notes, depending solely upon which
Holders must be afforded the opportunity of such review, or such
Participating Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object in a timely manner;
(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 Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
supplemented, if so determined by the Company or requested by the SEC, by
any required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all Notes covered by
each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of an Exchange Offer Registration Statement, if required by
applicable law or the staff of the SEC prior to the effectiveness of such
statement, provide a supplemental letter to the SEC (i) stating that the
Company is registering the Exchange Offer in reliance on the position of
the SEC enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991), Xxxxx & Wood
LLP (available
February 7, 1997) and (ii) including a representation that
the Company has not entered into any arrangement or understanding with any
Person to distribute the Exchange Notes to be received in the Exchange
Offer and that, to the best of the Company's information and belief, each
Holder participating in the Exchange Offer is acquiring the Exchange Notes
in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer;
(d) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement
with respect to the Registrable Notes is being filed and advising such
Holder that the distribution of Registrable Notes will be made in
accordance with the method selected by the Majority Holders of the
Registrable Notes included in the Shelf Registration Statement, (ii)
furnish to each Holder of Registrable Notes included in the Shelf
Registration Statement and to each underwriter of an underwritten offering
of Registrable Notes, if any, without charge, as many copies of each
Prospectus, including each preliminary prospectus, and any amendment or
supplement thereto, and such other documents as such Holder or underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Notes and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Notes included in the Shelf Registration Statement
in connection with the offering and sale of the Registrable Notes covered
by the Prospectus or any amendment or supplement thereto;
(e) in the case of a Shelf Registration, register or qualify the
Registrable Notes under all applicable state securities or "bule sky" laws
of such jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC as any Holder of Registrable Notes covered by
a Registration Statement and each underwriter of an underwritten offering
of Registrable Notes shall reasonably request in writing within 30 days in
advance of such date of effectiveness, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such Holder
and underwriter to consummate the disposition in each such jurisdiction of
such Registrable Notes owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(e), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(f) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Notes, or such Participating
Broker-Dealers, as the case may be, their counsel and
the managing
underwriters, if any, and promptly confirm such notice in writing (i) when
a Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a Registration
Statement or 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 qualification of the
Registrable Notes or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in Section 3(e)
hereof or the initiation of any proceedings for that purpose, (iv) in the
case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Company
contained in any purchase agreement, securities sales agreement or other
similar agreement cease to be true, correct and complete in all material
respects, (v) of the happening of any event or the failure of any event to
occur or the discovery of any facts, during the Effectiveness Period, which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes such Registration
Statement or Prospectus to omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing such
Registration Statement not to be effective or the Prospectus not to be
useable for resales and (vi) of the reasonable determination of the Company
that a post-effective amendment to the Registration Statement would be
appropriate;
(g) obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable;
(h) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(i) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends (except any customary legend borne by
securities held through The Depository Trust Company or any similar
depository) and in such denominations (consistent with the provisions of
the Indenture and the officer's certificate establishing the forms and the
terms of the Notes pursuant to the Indenture) and registered in such names
as the selling Holders or the underwriters may reasonably request (provided
such names are consistent with the names of the selling securityholders set
forth in the Shelf Registration Statement) at least two Business Days prior
to
the closing of any sale of Registrable Notes pursuant to such Shelf
Registration Statement;
(j) in the case of a Shelf Registration or an Exchange Offer Registration,
promptly after the occurrence of any event specified in Section 3(f)(ii),
3(f)(iii), 3(f)(v) (subject to the 60-day cumulative grace period within
any twelve-month period provided for in Section 2(e)(iv)(B)) or 3(f)(vi)
hereof, prepare a supplement or post-effective amendment to such
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 Notes,
such Prospectus will not include 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;
and the Company shall notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission;
(k) obtain a CUSIP number, and any other appropriate security
identification number, for the Exchange Notes or the Registrable Notes, as
the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange Notes
or the Registrable Notes, as the case may be, in a form eligible for
deposit with the Depositary;
(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 Notes or Registrable Notes, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and 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 such
documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by the Holders of at least 25% in
aggregate principal amount of the Registrable Notes being sold in order to
expedite or facilitate the registration or the disposition of the
Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) an Initial Purchaser, in the
case where such Initial Purchaser holds Notes acquired by it as part of its
initial placement, or (y) Holders of at least 25% in aggregate principal
amount of the Registrable Notes covered thereby: (i) make such
representations and warranties to Holders of such Registrable Notes
and the
underwriters (if any), with respect to the business of the Company as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, 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 and updates thereof (which may be in the form of
a reliance letter) in form and substance reasonably satisfactory to the
managing underwriters (if any) and the Holders of a majority in amount of
the Registrable Notes being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed that the matters
to be covered by such opinion may be subject to customary qualifications
and exceptions); (iii) obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriters
from the independent certified public accountants of the Company, addressed
to each of the underwriters, 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 such other matters as
reasonably requested by such underwriters in accordance with Statement on
Auditing Standards No. 72; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 4 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders); and
in the case of an underwritten registration, the above requirements shall
be satisfied at each closing under the related underwriting agreement or as
and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, make reasonably available for inspection by
any selling Holder of Registrable Notes or Participating Broker-Dealer, as
applicable, who certifies to the Company that it has a current intention to
sell Registrable Notes pursuant to the Shelf Registration, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder,
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during the Company's normal business hours, all financial and other
records, pertinent organizational and operational documents and properties
of the Company and the Parent (collectively, the "Records") as shall be
reasonably necessary to enable them to conduct due diligence activities,
and cause the officers, trustees and employees of the Company and the
Parent to supply all relevant information in each case reasonably requested
by any such Inspector in connection with such
Registration Statement;
Records and information which the Company determines, in good faith, to be
confidential and any Records and information which it notifies the
Inspectors are confidential shall not be disclosed to any Inspector except
where (i) the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (ii) the release of such Records or information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been made
generally available to the public; each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to agree
in writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless
and until such is made generally available to the public through no fault
of an Inspector, a Participating Broker-Dealer, or a selling Holder; and
each selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree in writing that it will,
upon learning that disclosure of such Records or information is sought in a
court of competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its expense
to undertake appropriate action to prevent disclosure of the Records and
information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long as
any provision of this Agreement shall be applicable and make generally
available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Notes are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods,
provided that the obligations under this paragraph (p) shall be satisfied
by the timely filing of quarterly and annual reports on Forms 10-Q and 10-K
under the Exchange Act;
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company ), in exchange for the Exchange Notes, the Company
shall xxxx, or cause to be marked, on such Notes delivered by such Holders
that such Notes are being cancelled in exchange for the Exchange Notes; it
being understood that in no event shall such Notes be marked as paid or
otherwise satisfied;
(r) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such
Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD;
(s) take all other steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution", which section shall be reasonably acceptable to
Xxxxxx Brothers Inc. on behalf of the Initial Purchasers or another
representative of the Participating Broker-Dealers, and which shall contain
a summary statement of the positions taken or policies made by the staff of
the SEC with respect to the potential "underwriters" status of any
broker-dealer that holds Registrable Notes acquired for its own account as
a result of market-making activities or other trading activities (a
"Participating Broker-Dealer") and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes to be
received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the
Initial Purchasers or such other representative, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes pursuant to
the Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of such Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in
Section 3(f), without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary
Prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request (the Company hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of
the Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (iii) use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons
must comply with such requirements under the Securities Act and applicable
rules and regulations in order to resell the Exchange Notes; provided,
however, that such period shall not be required to exceed 210 days (or such
longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Registrable Notes pursuant to
the Exchange Offer";
and (y) a statement to the effect that by a Participating Broker-Dealer
making the acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes, the
Participating Broker-Dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the Company
agrees to deliver to Xxxxxx Brothers Inc. on behalf of the Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if reasonably requested by an Initial Purchaser or such
other representative of Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel in form and substance reasonably satisfactory to such
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officer's certificate substantially
similar to that specified in Section 8(c) of the Purchase Agreement and
such additional certifications as are customarily delivered in a public
offering of debt Notes and (iii) upon the effectiveness of the Exchange
Offer Registration Statement, comfort letters, in each case, in customary
form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be
included in a Registration Statement. The Company may exclude from such
registration the Registrable Notes of any seller who unreasonably fails to
furnish such information within 10 days after receiving such request. The
Company shall have no obligation to register under the Securities Act the
Registrable Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in this Section 3(t) are seeking to sell Exchange Notes and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of
any notice from the Company of the occurrence of any event specified in
Section 3(f)(ii), 3(f)(iii), 3(f)(v) or 3(f)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Notes pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(j) hereof or
until it is
advised in writing (the "Advice") by the Company that the use
of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense)
all copies in such Holder's possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Notes or Exchange Notes, as the case may be, current at the
time of receipt of such notice. If the Company shall give any such notice
to suspend the disposition of Registrable Notes or Exchangeable Notes, as
the case may be, pursuant to a Registration Statement, the Company shall
use its commercially reasonable efforts to file and have declared effective
(if an amendment), as soon as practicable after the resolution of the
related matters, an amendment or supplement to the Registration Statement
and shall extend the period during which such Registration Statement is
required to be maintained effective and the Prospectus usable for resales
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date
when the Company shall have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution. (a) In connection with a Shelf
Registration Statement or in connection with any delivery of a Prospectus
contained in an Exchange Offer Registration Statement by any Participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to sell
Exchange Notes, the Company shall indemnify and hold harmless each Holder
of Registrable Notes included within any such Shelf Registration Statement
and each Participating Broker-Dealer or Initial Purchaser selling Exchange
Notes, and each Person, if any, who controls any such Person within the
meaning of Section 15 of the Securities Act.:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, or based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto), covering
Registrable Notes or Exchange Notes, as applicable, or the omission or
alleged omission therefrom of a material fact required to be stated or
necessary in order to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the prior written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by such Holder, such
Participating Broker-Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 4(c) hereof)), reasonably incurred
in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii) of
this Section 4(a);
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of (i) an
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished in
writing to the Company by the Initial Purchasers or any Holder, underwriter
or Participating Broker-Dealer for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto) or (ii) the failure of any Holder to comply with the provisions of
the last paragraph of Section 3.
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broker-Dealer agrees, severally and not jointly, to indemnify
and hold harmless the Company and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all loss, liability, claim, damage
and expense whatsoever described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Initial Purchaser,
Holder, underwriter or Participating Broker-Dealer expressly for use in
such Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided, however,
that in the case of a Shelf Registration Statement, no such Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Notes pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Section 4 to the extent that it
is not materially prejudiced by such failure as a result thereof, and in
any event shall not relieve it from liability which it may have otherwise
on account of this Agreement. In the case of parties indemnified pursuant
to Section 4(a) or (b) above, counsel to the indemnified parties shall be
selected by such parties. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to local counsel), separate from their own
counsel, for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional written release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified
party although applicable in accordance with its terms, the Company and the
Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and the Holders, as incurred; provided, however,
that no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person that was not guilty of such fraudulent misrepresentation.
As between the Company and the Holders, such parties shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by this Agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company, on the one hand,
and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of
the Holders, on the other hand, 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, on the one hand, or by or on behalf
of the Holders, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of allocation that
does not take into account the relevant equitable considerations. For
purposes of this Section 4, each Affiliate of a Holder, and each director,
officer and employee and Person, if any, who controls a Holder or such
Affiliate within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Holder and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
5. Participation in an Underwritten Registration. No Holder may participate
in an underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of
such underwriting arrangements.
6. Selection of Initial Purchasers. The Holders of Registrable Notes
covered by the Shelf Registration Statement who desire to do so may sell
the Notes covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(m) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal
amount of the Registrable Notes included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of
Registrable Notes, (a) make publicly available such information as is
necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as
is necessary to permit sales of its securities pursuant to Rule 144A under
the Securities Act, and (c) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time
to enable such Holder to sell its Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be amended from
time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Notes, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company and the Parent have not
entered into, nor will the Company or the Parent on or after the date of
this Agreement enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof without the written consent
of Holders of a majority in aggregate principal amount of the outstanding
Registrable Notes. 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 or the Parent's other issued and outstanding
securities under any such agreements.
(c) 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 a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment, modification
or supplement or waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder of
Registrable Notes. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Notes, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
other provisions of this Agreement, (ii) this Agreement may be amended,
modified or supplemented, and waivers and consents to departures from the
provisions
hereof may be given, by written agreement signed by the Company
and the Initial Purchasers to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable
judgment, necessary or appropriate to comply with applicable law and
regulation (including any interpretation of the Staff of the SEC) or any
change therein and (iii) to the extent any provision of this Agreement
relates to an Initial Purchaser, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions
may be given, by written agreement signed by such Initial Purchaser and the
Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, 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 7(d), which address initially is, with respect
to the Initial Purchasers:
Xxxxxx Brothers Inc.
Banc of America Securities LLC
BNY Capital Markets, Inc.
Xxxxxxx Xxxxx Barney Inc.
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
With a Copy to: General Counsel of Xxxxxx Brothers Inc.
and (ii) if to the Company, initially at the Company's address:
Baltimore Gas and Electric Company
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
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.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of the Initial
Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Notes in any manner, whether by operation of law or otherwise,
such Registrable Notes shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Notes, 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.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder among the Initial Purchasers and the Company, and the Initial
Purchasers 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 DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, 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.
(k) Notes Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BALTIMORE GAS AND ELECTRIC COMPANY
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Treasurer and Assistant Secretary
Confirmed and accepted as of
the date first above written:
XXXXXX BROTHERS INC.
By: XXXXXX BROTHERS INC.
For itself and as Representative of the
several Initial Purchasers
By: /s/ Xxxxxx Xxxxxxxx
Authorized Signatory
