EXHIBIT 4.83
Conformed Copy
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 25, 2003
between
Duke Energy Corporation,
as Issuer
and
Banc One Capital Markets, Inc.,
Deutsche Bank Securities Inc.
UBS Warburg LLC
ABN AMRO Incorporated
Barclays Capital Inc.
CIBC World Markets Corp.
Scotia Capital (USA) Inc.
TD Securities (USA) Inc.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 25th day of February, 2003, by and between Duke Energy
Corporation, a North Carolina corporation (the "Issuer"), and Banc One Capital
Markets, Inc., Deutsche Bank Securities Inc., UBS Warburg LLC, ABN AMRO
Incorporated, Barclays Capital Inc., CIBC World Markets Corp, Scotia Capital
(USA) Inc. and TD Securities (USA) Inc. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated February 20, 2003 (the "Purchase Agreement"), between the Issuer and the
Initial Purchasers, which provides for the sale by the Issuer to the Initial
Purchasers of an aggregate of $500,000,000 principal amount of the Issuer's
First and Refunding Mortgage Bonds, 3.75% Series A due 2008 (the "Bonds"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuer 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:
"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.
"Bonds" shall have the meaning set forth in the preamble to
this Agreement.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Issuer, provided, however, that such
depositary must have an address in the Borough of Manhattan, in The
City of New York.
"Exchange Bonds" shall mean the First and Refunding Mortgage
Bonds, 3.75% Series B due 2008, issued by the Issuer under the
Indenture containing terms identical to the Bonds, in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to
Holders of Bonds in exchange for Registrable Bonds pursuant to the
Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Issuer
of Exchange Bonds for Registrable Bonds pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 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, 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
2.1 hereof.
"Holder" shall mean each of the Initial Purchasers, for so
long as it owns any Registrable Bonds, and each of its successors,
assigns and direct and indirect transferees who become registered
owners of Registrable Bonds under the Indenture.
"Indenture" shall mean the First and Refunding Mortgage, dated
as of December 1, 1927, by and among the Issuer and JPMorgan Chase
Bank, as successor trustee, as amended and supplemented by various
supplemental indentures, including the Eighty-First Supplemental
Indenture, dated February 25, 2003, creating the Bonds and the Exchange
Bonds.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Issuer" shall have the meaning set forth in the preamble and
shall also include the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Bonds; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Bonds is required hereunder, Registrable
Bonds held by the Issuer or any Affiliate (as defined under the 0000
Xxx) of the Issuer shall be disregarded in determining whether such
consent or approval was given by the Holders of such required
percentage amount.
"Participating Broker-Dealer" shall mean Banc One Capital
Markets, Inc., Deutsche Bank Securities Inc., UBS Warburg LLC, ABN AMRO
Incorporated, Barclays Capital Inc., CIBC World Markets Corp, Scotia
Capital (USA) Inc. and TD Securities (USA) Inc. and any other
broker-dealer which makes a market in the Bonds and exchanges
Registrable Bonds in the Exchange Offer for Exchange Bonds.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or incorporated
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 any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Bonds
covered
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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 material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Issuer with this
Agreement, including without limitation: (i) all SEC or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all reasonable fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Bonds or Registrable
Bonds and any filings with the NASD) such fees not to exceed $7,500,
(iii) all expenses of any Persons 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) the fees and disbursements
of counsel for the Issuer and of the independent public accountants of
the Issuer, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, (vi) the fees and expenses of the Trustee, and any escrow
agent or custodian, (vii) the reasonable fees and expenses of the
Initial Purchasers in connection with the Exchange Offer, including the
reasonable fees and expenses of counsel to the Initial Purchasers in
connection therewith, and (viii) the reasonable fees and disbursements
traditionally borne by the Issuer in connection with registered
security offerings as set forth in the underwriting agreement
customarily used by the Issuer.
"Registrable Bonds" shall mean the Bonds of any Holder;
provided, however, that such Bonds shall cease to be Registrable Bonds
when (i) a Registration Statement with respect to such Bonds shall have
been declared effective under the 1933 Act and such Bonds shall have
been disposed of pursuant to such Registration Statement, (ii) such
Bonds can be sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Bonds shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Bonds purchased from the
Issuer and continued to be held by the Initial Purchasers).
"Registration Statement" shall mean any registration statement
of the Issuer which covers any of the Exchange Bonds or Registrable
Bonds 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 United States Securities and Exchange
Commission or any successor agency or government body performing the
functions currently performed by the United States Securities and
Exchange Commission.
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"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuer pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable
Bonds, 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.
"Trustee" shall mean the trustee with respect to the Bonds
under the Indenture.
2. Registration Under the 0000 Xxx.
2.1. Exchange Offer. The Issuer shall (A) prepare and, as
soon as practicable but not later than 130 calendar days following the Closing
Date, file with the SEC an Exchange Offer Registration Statement with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Bonds, a like principal amount of Exchange Bonds,
(B) use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act not later than 180
calendar days following the Closing Date, (C) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) use its reasonable best efforts to cause the Exchange
Offer to be consummated within 210 calendar days following the Closing Date. The
Exchange Bonds will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Issuer shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Bonds for Exchange Bonds
(assuming that such Holder (a) is not an affiliate of the Issuer within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Bonds acquired directly from the Issuer for its own account, (c)
acquired the Exchange Bonds in the ordinary course of such Holder's business and
(d) has no arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the Exchange Bonds) to transfer
such Exchange Bonds from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Issuer shall:
(a) 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;
(b) keep the Exchange Offer open for acceptance for a
period of not less than 20 business days after the date notice thereof
is mailed to the Holders (or longer if required by applicable law)
(such period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the
Exchange Offer;
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(d) permit Holders to withdraw tendered Registrable Bonds
at any time prior to 5:00 p.m. (Eastern Time) on the last business day
of the Exchange Period, by sending to the institution specified in the
notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Bonds delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Bonds exchanged;
(e) notify each Holder that any Registrable Bonds not
tendered 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
(f) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange all Registrable Bonds duly tendered and
not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which
shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Registrable Bonds
so accepted for exchange; and
(iii)cause the Trustee promptly to authenticate and deliver the
Exchange Bonds to each Holder of Registrable Bonds so
accepted for exchange in a principal amount equal to the
principal amount of the Registrable Bonds of such Holder
so accepted for exchange.
The Issuer shall use its reasonable best 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 Participating Broker-Dealers subject to the prospectus delivery
requirements of the 1933 Act for such period of time as such Participating
Broker-Dealers must comply with such requirements in order to resell the
Exchange Bonds; provided, however, that (i) such period shall be the lesser of
90 days after the consummation of the Exchange Offer and the date on which all
Participating Broker-Dealers have sold all Exchange Bonds held by them (unless
such period is extended pursuant to Section 3(k) below) and (ii) the Issuer
shall make such Prospectus, and any amendment or supplement thereto, available
to any such Participating Broker-Dealer for use in connection with any resale of
any Exchange Bonds for a period of the lesser of 90 days after the consummation
of the Exchange Offer and the date on which all Participating Broker-Dealers
have sold all Exchange Bonds held by them (unless such period is extended
pursuant to Section 3(k) below).
Interest on the Exchange Bonds will accrue from the most
recent interest payment date to which interest has been paid on the Registrable
Bonds surrendered in exchange therefor or, if no interest has been paid on such
Registrable Bonds, from the date of original issuance. The Exchange Offer shall
not be subject to any conditions, other than (i) that the Exchange
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Offer, or the making of any exchange by a Holder, does not violate applicable
law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Bonds in accordance with the Exchange Offer, (iii) that
each Holder of Registrable Bonds exchanged in the Exchange Offer shall have
represented that all Exchange Bonds to be received by it shall be acquired in
the ordinary course of its business and that at the time of the consummation of
the Exchange Offer it shall have no arrangement or understanding with any person
to participate in the distribution (within the meaning of the 0000 Xxx) of the
Exchange Bonds and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the judgment of the Issuer, would reasonably be
expected to impair the ability of the Issuer to proceed with the Exchange Offer.
The Issuer 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 to contact such Holders and otherwise facilitate the tender of
Registrable Bonds in the Exchange Offer.
2.2. Shelf Registration. (i) If, because of any changes in
law, SEC rules or regulations or applicable interpretations thereof by the staff
of the SEC, the Issuer is not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer is not consummated within 210 calendar days after the Closing Date
(provided that the Issuer is not then actively pursuing such effectiveness or
consummation, as the case may be), (iii) after consummation of the Exchange
Offer and upon the written request of the Initial Purchasers with respect to any
Registrable Bonds which it acquired directly from the Issuer then in case of
each of clauses (i) through (iii) the Issuer shall, at their cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use its reasonable best efforts to cause to be
declared effective as promptly as practicable but no later than 210
calendar days after the Closing Date, except in the case of clause
(iii) of the preceding paragraph, which shall be no later than 90 days
following such request, a Shelf Registration Statement relating to the
offer and sale of the Registrable Bonds by the Holders from time to
time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth
in such Shelf Registration Statement.
(b) Use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders for a period
ending on the earliest of (i) two years from the date the Registrable
Bonds were originally issued by the Issuer, (ii) the date on which the
Registrable Bonds become eligible for resale without volume limitations
pursuant to Rule 144 under the 1933 Act, or (iii) for such shorter
period that will terminate when all Registrable Bonds covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Bonds.
(c) Notwithstanding any other provisions hereof, use its
best efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus
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forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under
which they were made, not misleading.
The Issuer further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and
to furnish to the Holders of Registrable Bonds copies of any such supplement or
amendment promptly as reasonably practicable after its being used or filed with
the SEC.
2.3. Expenses. The Issuer shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1 or 2.2.
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Bonds pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Issuer will be deemed not to
have used its reasonable best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Issuer voluntarily takes
any action that would, or omits to take any action which omission would, result
in any such Registration Statement not being declared effective or in the
holders of Registrable Bonds covered thereby not being able to exchange or offer
and sell such Registrable Bonds during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
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 Bonds pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Bonds pursuant to
such Registration Statement may legally resume.
2.5. Interest. If the Exchange Offer is not consummated
and the Shelf Registration Statement is not declared effective on or prior to
the date that is 210 days after the Closing Date, the interest rate on the Bonds
will be increased by 0.25% per annum commencing the date that is 210 days after
the Closing Date, until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective by the SEC; provided, that in the
case of a Shelf Registration Statement, (i) if the Issuer is unable to cause
such Shelf Registration Statement to become effective because Holders of
Registrable Bonds have not provided information with respect to themselves as
required by law to be included therein pursuant to the Issuer's request as
provided herein, such 0.25% increase in the interest rate shall be payable only
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to Holders that have furnished such information required by law to be included
therein to the Issuer pursuant to its request hereunder from but excluding the
date such information is provided to the Issuer to but excluding the date the
Shelf Registration Statement is declared effective by the SEC and (ii) in the
case of a Shelf Registration Statement required under clause (iii) of the first
paragraph of Section 2.2, such interest rate increase shall commence on the date
that is 90 days following the request related to filing the Shelf Registration
Statement.
2.6. Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Issuer acknowledges
that any failure by the Issuer to comply with its obligations under Sections 2.1
and 2.2 hereof may result in material irreparable injury to the Initial
Purchasers or 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 Issuer's obligations
under Sections 2.1 and 2.2 hereof.
3. Registration Procedures. In connection with the
obligations of the Issuer with respect to Registration Statements pursuant to
Sections 2.1 and 2.2 hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration
Statement, within the relevant time period specified in Section 2, on
the appropriate form under the 1933 Act, which form (i) shall be
selected by the Issuer, (ii) shall in the case of a Shelf Registration,
be available for the sale of the Registrable Bonds by the selling
Holders thereof, (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply
in all respects with the requirements of Regulation S-T under the 1933
Act, and use their best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law 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
comply with the provisions of the 1933 Act applicable to them with
respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Bonds, at least 5 business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Bonds is being filed and advising such Holders that the distribution of
Registrable Bonds will be made in accordance with the method selected
by the Majority Holders participating in the Shelf Registration; (ii)
furnish to each Holder of Registrable Bonds and to each underwriter of
an underwritten offering of Registrable Bonds, if any, without charge,
as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
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documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so
requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Bonds; and (iii) hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Bonds in connection with the
offering and sale of the Registrable Bonds covered by the Prospectus or
any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Bonds under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Bonds covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Bonds shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary
or advisable to enable each such Holder and underwriter to consummate
the disposition in each such jurisdiction of such Registrable Bonds
owned by such Holder; provided, however, that the Issuer shall not be
required to (i) qualify as a foreign corporation or as a dealer in
Securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Bonds
under a Shelf Registration or any Participating Broker-Dealer who has
notified the Issuer that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below, and, if
requested by such Holder or Participating Broker-Dealer, confirm such
advice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for addition 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) in case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Bonds covered
thereby, the representations and warranties of the Issuer contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects, (v) of the happening of any event or
the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such
Registration Statement or 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 and (vi) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification of the
Registrable Bonds or the Exchange Bonds, as the case may be, for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(f) 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 include all
information that the Initial Purchasers may reasonably request,
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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
"underwriter" status of any broker-dealer that holds Registrable Bonds
acquired for its own account as a result of market-making activities or
other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the 0000 Xxx) of Exchange Bonds 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 and their counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Bonds for Registrable Bonds
pursuant to the Exchange Offer may be deemed a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Bonds, (ii) furnish to
each Participating Broker-Dealer who has delivered to the Issuer the
notice referred to in Section 3(e), 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,
(iii) hereby consent 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 requirement
of the SEC, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Bonds covered by the
Prospectus or any amendment or supplement thereto, 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 Bonds 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 1933 Act in connection with any
resale of Exchange Bonds received in respect of such
Registrable Bonds pursuant to the Exchange Offer;"
and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with any resale of Exchange Bonds, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of
the 1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable Bonds
copies of any comment letters received from the SEC or any other
request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
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(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Bonds, and each underwriter, if any, without
charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements
and schedules (without documents incorporated therein by reference and
all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Bonds to facilitate the timely
preparation and delivery of certificates representing Registrable Bonds
to be sold and not bearing any restrictive legends; and enable such
Registrable Bonds to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at
least 3 business days prior to the closing of any sale of Registrable
Bonds;
(k) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof,
use its best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document, each as required in the reasonable determination of
the Issuer so that, as thereafter delivered to the purchasers of the
Registrable Bonds or Participating Broker-Dealers, such Prospectus will
not contain at the time of such delivery 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 or will remain so qualified;
(l) in the case of a Shelf Registration, a reasonable
time prior to the filing of any Registration Statement, any Prospectus,
an amendment to a Registration Statement or amendment or supplement to
a Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers on behalf of such Holders; and make representatives of the
Issuer as shall be reasonably requested by the Holders of Registrable
Bonds, or the Initial Purchasers on behalf of such Holders, available
for discussion of such document;
(m) obtain a CUSIP number of all Exchange Bonds or
Registrable Bonds, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Bonds or the Registrable Bonds, as the
case may be, in a form eligible for deposit with the Depositary;
(n) (i) 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 Bonds or Registrable Bonds, as the
case may be, (ii) 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 (iii)
execute, and use its 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;
11
(o) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Bonds and in such connection
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration:
(i) make such representations and warranties to
the Holders of such Registrable Bonds and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;
(ii) obtain opinions of counsel to the Issuer and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority
in principal amount of the Registrable Bonds being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants who
have certified the financial statements of the Issuer and any
other entity included or incorporated by reference in the
Registration Statement addressed to the underwriters, if any,
and use reasonable efforts to have such letter addressed to
the selling Holders of Registrable Bonds (to the extent
consistent with SAS 72), such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of Registrable
Bonds, which agreement shall be in form, substances and scope
customary for similar offerings;
(v) if an underwriting agreement is entered
into, cause the same to set forth indemnification provisions
and procedures customarily provided by the Issuer to
underwriters in similar types of transactions with respect to
the underwriters and all other parties to be indemnified
pursuant to Section 4 hereof; and
(vi) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings to the Holders of a majority in principal
amount of the Registrable Bonds being sold and the managing
underwriters, if any.
12
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereof) and (ii) each
closing under any underwriting or similar agreement as and to the
extent required thereunder;
(p) in the case of a Shelf Registration, make available
for inspection by representatives of the Holders of the Registrable
Bonds and any underwriters participating in any disposition pursuant to
a Shelf Registration Statement and any counsel or accountant retained
by such Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of the Issuer reasonably
requested by any such persons and use its reasonable best efforts to
cause the respective officers, directors, employees, and any other
agents of the Issuer to supply all information reasonably requested by
any such representative, underwriter, special counsel or accountant in
connection with a Registration Statement, and make such representatives
of the Issuer available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; provided that any
confidential or proprietary information may only be inspected subject
to customary confidentiality agreements or procedures that the Issuer
requires;
(q) (i) in the case of an Exchange Offer Registration
Statement, within a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to
the Initial Purchasers and make such changes in any such document prior
to the filing thereof as the Initial Purchasers may reasonably request
and, except as otherwise required by applicable law, not file any such
document in a form to which the Initial Purchasers on behalf of the
Holders of Registrable Bonds shall reasonably object, and make the
representatives of the Issuer available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
and
(ii) in the case of a Shelf Registration, within a reasonable
time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Bonds, to the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters
of an underwritten offering of Registrable Bonds, if any, make
such changes in any such document prior to the filing thereof
as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file
any such document in a form to which the Majority Holders or
the Initial Purchasers on behalf of the Holders of Registrable
Bonds or any underwriter may reasonably object and make the
representatives of the Issuer available for discussion of such
document as shall be reasonably requested by the Holders of
Registrable Bonds, the Initial Purchasers on behalf of such
Holders, or any underwriter.
(r) in the case of a Shelf Registration, use their
reasonable best efforts to cause all Registrable Bonds to be listed on
any securities exchange on which similar debt securities issued by the
Issuer are then listed if requested by the Majority Holders, or if
13
requested by the underwriter or underwriters of an underwritten
offering of Registrable Bonds, if any; provided, however, the Issuer
shall not have reasonably objected to such request and, for the
avoidance of doubt, it shall be reasonable for the Issuer to object to
such request if at such time the Issuer does not routinely list its
debt securities on a securities exchange;
(s) in the case of a Shelf Registration, use their
reasonable best efforts to cause the Registrable Bonds to be rated by
the appropriate rating agencies, if so requested by the Majority
Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Bonds, if any;
(t) otherwise comply with all applicable rules and
regulations of the SEC and make available to security holders, in
accordance with the Issuer's Exchange Act filing obligations, an
earnings statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be
made with the NASD and, in the case of a Shelf Registration, in the
performance of any due diligence investigation by any underwriter and
its counsel; and
(v) upon consummation of an Exchange Offer, if requested
by the Trustee, obtain a customary opinion of counsel to the Issuer
addressed to the Trustee for the benefit of all Holders of Registrable
Bonds participating in the Exchange Offer, and which includes an
opinion that (i) the Issuer has duly authorized, executed and delivered
the Exchange Bonds and the related indenture and (ii) the Exchange
Bonds and related indenture constitute a legal, valid and binding
obligation of the Issuer, enforceable against the Issuer in accordance
with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Issuer may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Bonds to furnish to the Issuer such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Bonds as the Issuer may from time to time reasonably request in
writing for use in connection with any Shelf Registration Statement or
Prospectus included therein, including, without limitation, information
specified in item 507 of Regulation S-K under the 1933 Act. Each Holder as to
which any Shelf Registration is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed with respect to such Holder in
order to make any information with respect to such Holder previously furnished
to the Issuer by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Issuer of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii), (iii), (iv), (v) and (vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Bonds pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Issuer, such Holder will deliver to the Issuer (at its expense) all copies
in such Holder's possession, other than permanent file copies then in such
14
Holder's possession, of the Prospectus covering such Registrable Bonds current
at the time of receipt of such notice.
If any of the Registrable Bonds covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable Bonds
included in such offering and shall be acceptable to the Issuer. No Holder of
Registrable Bonds may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Bonds on the
basis provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting agreement.
4. Indemnification; Contribution. (a) The Issuer agrees
to indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act (such
indemnified parties, the "Holders and/or Underwriters," as the case may be), as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary 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 any amendment or
supplement thereto) 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, unless such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with written information
furnished to the Issuer by any Holder or Underwriter expressly
for use in the Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Issuer; and
(iii) against any and all expense whatsoever
reasonably incurred in investigating, preparing or defending
against any litigation, 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 (i) or (ii) of
this subsection (a) of Section 4.
15
In no case shall the Issuer be liable under this indemnity agreement with
respect to any claim made against any Holder or Underwriter or any such
controlling Person unless the Issuer shall be notified in writing of the nature
of the claim within a reasonable time after the assertion thereof, but failure
so to notify the Issuer shall not relieve it from any liability which it may
have otherwise than under subsections 4(a) and 4(b). The Issuer shall be
entitled to participate at its own expense in the defense, or, if it so elects,
within a reasonable time after receipt of such notice, to assume the defense of
any suit brought to enforce any such claim, but if it so elects to assume the
defense, such defense shall be conducted by counsel chosen by it and approved by
the Holder, Underwriter, Holders or Underwriters or controlling Person, or
defendant or defendants in any suit so brought, which approval shall not be
unreasonably withheld. In any such suit, any Holder or Underwriter or any such
controlling Person shall have the right to employ its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Holder or
Underwriter or such controlling Person unless (i) the Issuer and such Holder or
Underwriter shall have mutually agreed to the employment of such counsel, or
(ii) the named parties to any such action (including any impleaded parties)
include both such Holder or Underwriter or such controlling Person and the
Issuer and such Holder or Underwriter or such controlling Person shall have been
advised by such counsel that a conflict of interest between the Issuer and such
Holder or Underwriter or such controlling Person may arise and for this reason
it is not desirable for the same counsel to represent both the indemnifying
party and also the indemnified party (it being understood, however, that the
Issuer shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such Holders
and Underwriters and all such controlling Persons, which firm shall be
designated in writing by the majority of such indemnified parties). The Issuer
agrees to notify any Holder or Underwriter within a reasonable time of the
assertion of any claim against it, any of its officers or directors or any
Person who controls the Issuer within the meaning of Section 15 of the 1933 Act,
in connection with any sale of the Bonds; provided, that the Issuer shall not be
required to notify any Holder or Underwriter if such claim relates to a
Registration Statement or Prospectus that does not name such Holder or
Underwriter.
(b) Each Holder and Underwriter severally agrees that it
will indemnify and hold harmless the Issuer, each other Underwriter and each of
their respective directors and each of the officers of the Issuer who signed the
Registration Statement and each Person, if any, who controls the Issuer within
the meaning of Section 15 of the 1933 Act to the same extent as the indemnity
contained in subsection (a) of this Section 4, but only with respect to
statements or omissions made in the 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 Issuer by such
Holder or Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
In case any action shall be brought against the Issuer or any person so
indemnified based on the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Holder or Underwriter, such Holder or
Underwriter shall have the rights and duties given to the Issuer, and the Issuer
and each person so indemnified shall have the rights and duties given to the
Holders and Underwriters, by the provisions of subsection (a) of this Section 4.
16
(c) 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 any 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 this Section 4
is unavailable to or insufficient to hold harmless an indemnified party in
respect of any and all loss, liability, claim, damage and expense whatsoever (or
actions in respect thereof) that would otherwise have been indemnified under the
terms of such indemnity, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuer on the one hand and the Holders or Underwriters, severally, on the other
from the sale of the Bonds. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuer on the one hand and
the Holders or Underwriters on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense (or
actions in respect thereof), as well as any other relevant equity
considerations. The relative benefits received by the Issuer on the one hand and
the Holders or Underwriters, severally, on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) of the Bonds and any Registrable Bonds (taken together)
received by the Issuer bear to (i) the benefits of the Initial Purchasers from
the total compensation received by the Initial Purchasers in respect of the
discount as set forth in the table on the cover page of the Offering Memorandum,
dated February 20, 2003 pursuant to which the Bonds were issued, (ii) the
benefits of any Holders (including, if applicable, any Initial Purchaser who is
also a Holder) from receiving Bonds registered under the 1933 Act, or (iii) the
benefits of any Participating Broker-Dealer or Underwriter from the total
compensation received by such Participating Broker-Dealer or Underwriters in
respect of underwriting discounts and commissions received in the sales of the
Bonds which resulted in such indemnified claims. The relative fault 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 Issuer on the one hand or
the Holders or Underwriters, severally, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Issuer and the Holders and Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 4 were determined by pro rata allocation (even if the Holders and
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 4. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims, damages or
expenses (or actions in respect thereof) referred to above in this subsection
(d) of Section 4 shall be deemed to include 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 4, (i) no Holder (including, if applicable, any Initial Purchaser who is
also a Holder) shall be required to contribute any amount in excess of the
amount by which the total price at which the Bonds were sold by it
17
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission and (ii) no Initial Purchaser, Participating Broker-Dealer or
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Bonds underwritten or sold on commission
by it exceeds the amount of any damages which such Initial Purchaser,
Participating Broker-Dealer or Underwriter 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 Holders and
Underwriters' obligations to contribute are several in proportion to the
principal amount of Bonds purchased by them and not joint.
5. Miscellaneous.
5.1. Rule 144 and Rule 144A. The Issuer covenants that
while any of the Registrable Bonds remain "restricted securities" within the
meaning of the 1933 Act, it will upon the request of any Holder of Registrable
Bonds make available the information specified in Rule 144A(d)(4) under the 1933
Act unless the Issuer is then subject to Section 13 or 15(d) of the 1934 Act.
5.2. No Inconsistent Agreements. The Issuer has not
entered into and the Issuer will not after the date of this Agreement enter into
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Bonds in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the Holders of the Issuer's other issued and
outstanding Bonds under any such agreements.
5.3. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers of consents to departures from the
provisions hereof may not be given unless the Issuer has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Bonds affected by such amendment, modification,
supplement, waiver or departure.
5.4. 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 (a) if to a Holder, at the most current address given by such
Holder to the Issuer by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Issuer initially at the Issuer's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is
18
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 given the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5. Successor 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; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Bonds in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Bonds, in any manner,
whether by operation of law or otherwise, such Registrable Bonds shall be held
subject to all of the terms of this Agreement, and by taking any holding such
Registrable Bonds 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,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive
the benefits hereof.
5.6. Third Party Beneficiaries. The Initial Purchasers
(even if the Initial Purchasers are not Holders of Registrable Bonds) shall be a
third party beneficiary to the agreements made hereunder between the Issuer, on
the one hand, and the Holders, on the other hand, 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.
Each Holder of Registrable Bonds shall be a third party beneficiary to the
agreements made hereunder between the Issuer, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
5.7. 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.
5.8. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
5.10. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
DUKE ENERGY CORPORATION
as Issuer
By: /s/ Xxxxx X. Xxxxxx
__________________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
Confirmed and accepted as
of the date first above written:
BANC ONE CAPITAL MARKETS, INC. DEUTSCHE BANK SECURITIES INC. UBS WARBURG LLC
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxx Blue
_________________________ _________________________ __________________________
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxxx Blue
Title: Managing Director Title: Managing Director Title: Managing Director
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxx
_________________________ __________________________
Name: Xxxxx Xxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: Director
Acting severally on behalf of themselves and the several Initial
Purchasers named in Schedule I to the Purchase Agreement.
20
