Exhibit 4.8
EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) is made and entered into as of
April 9, 2008 by and among Ameren Energy Generating Company,
an Illinois corporation (the “Company”), and the
Initial Purchasers (as hereinafter defined).
This Agreement is made pursuant to the Purchase
Agreement dated April 4, 2008 (the “Purchase
Agreement”), by and among the Company, as issuer of
$300,000,000 aggregate principal amount of 7.00% Senior Notes,
Series G due 2018 (the “Notes”), and the Initial
Purchasers, which provides for, among other things, the sale by the
Company to the Initial Purchasers of the aggregate principal amount
of 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:
“Additional Interest” shall have
the meaning set forth in
Section 2(e)(i) hereof.
“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.
“Agreement” shall have the meaning
set forth in the preamble to this Agreement.
“Applicable Period” shall have the
meaning set forth in Section 3(u) 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 are authorized or required by
law or executive order to remain closed or a day on which the
corporate trust office of the Trustee is closed for
business.
“Closing Date” shall mean
April 9, 2008, 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
7.00% Senior Notes, Series H due 2018 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) except in the circumstances
described in Section 2(e)(iv) hereof and except for
Exchange Notes held by Participating Broker-Dealers, they will not
provide for any Additional Interest 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.
“FINRA” shall mean the Financial
Industry Regulatory Authority, Inc.
“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 who
become registered owners of Registrable Notes under the
Indenture.
“Indenture” shall mean the
Indenture dated as of November 1, 2000 between the Company and
the Trustee, as previously supplemented, as amended and
supplemented by the Fifth Supplemental Indenture, dated as of
April , 2008 and as it may be
further supplemented from time to time.
“Initial Purchasers” shall mean
Lehman Brothers Inc., UBS Securities LLC and Wachovia Capital
Markets, LLC.
“Inspectors” shall have the meaning
set forth in Section 3(p) 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.
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“Participating Broker-Dealer” shall
have the meaning set forth in
Section 3(u) 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(p) hereof.
“Registrable 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 Participating 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
under the Securities Act (or any successor provision thereof)
without the satisfaction of any conditions except the applicable
holding period set forth therein.
“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 FINRA 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 FINRA,
(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 the Registrable
Notes) and compliance with the rules of the FINRA,
(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, securities
sale agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency
fees, (v) all reasonable fees and disbursements of counsel for
the Company and of the independent registered public accountants of
the Company, including the expenses of any “cold
comfort” letters required by or incident to the performance
of and compliance with this Agreement, (vi) all reasonable
fees and expenses of the Trustee and its
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counsel and any exchange agent or custodian,
and (vii) all 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 the 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 Period” shall mean
the period of one year (or such shorter period as may hereafter be
referred to in Rule 144 under the Securities Act (or similar
successor rule) permitting Holders who are not Affiliates of the
Company to resell Registrable Notes without any conditions)
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 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.
“TIA” shall have the meaning set
forth in Section 3(m) 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, (i) prepare and file
with the SEC as soon as practicable after the Closing Date, but in
no event later than 120 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) use
its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective under the
Securities Act by the SEC as soon as practicable after the Closing
Date, but in no event later than 180 calendar days after the
Closing Date, (iii) provided such Exchange Offer Registration
Statement has been declared effective
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under the Securities Act by the SEC, use its
reasonable best efforts to keep the Exchange Offer Registration
Statement effective until the completion of the Exchange Offer, and
(iv) 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 20 business 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”), use its reasonable best efforts
to cause the Exchange Offer to be completed not later than 45
calendar days after the date on which such Registration Statement
was declared effective by the SEC, and at the termination thereof
issue Exchange Notes in exchange for all Registrable Notes tendered
prior thereto in the Exchange Offer.
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)
use 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 its election to have such Registrable
Notes exchanged;
(iv)
notify each Holder that
any Registrable Note 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 completion 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
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amount of the Notes as are surrendered by such
Holder and accepted for exchange by the Company.
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 its reasonable best 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, as a condition to
participating in the Exchange Offer, 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 for its own
account, (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 Notes or 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, 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 225 calendar
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 calendar day following the
consummation 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 Event Date”), then in
addition to or in lieu of conducting the
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Exchange Offer contemplated by
Section 2(a) of this Agreement, as the case may be, the
Company shall promptly notify the Holders in writing thereof and
shall, at its cost, file with the SEC as promptly as practicable
after such Shelf Registration Event Date and, in any event, within
45 calendar days after such Shelf Registration Event Date, or, if
later, the 120th calendar day after the Closing 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), and shall use its reasonable best
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 calendar day after the Shelf Registration Event
Date or, if later, the 225th calendar day after the Closing
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 15 calendar 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 reasonable best 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 Period and (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) and (y) being the “Effectiveness
Period”). The Company shall not permit any securities
other than Registrable Notes to be included in the Shelf
Registration. 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 incurred by the firm of counsel 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,
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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, 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. The Company 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 it voluntarily takes any action that would
result in any such Registration Statement not being declared
effective or that would result in the otherwise eligible Holders of
Registrable Notes covered thereby not being able to exchange or
offer and sell such Registrable Notes during that period, unless
such action is required by applicable law or regulation or
otherwise permitted by provisions of this Agreement.
(e)
Additional
Interest. In the event that:
(i)
the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the
120th calendar day after the Closing Date, then, commencing on the
121st calendar day after the Closing Date, additional interest (the
“Additional Interest”) shall accrue on the principal
amount of the Registrable Notes over and above the otherwise
applicable interest rate at a rate of 0.25% per annum, plus an
additional 0.25% per annum from and during any period in which such
event has continued for more than 90 calendar days;
(ii)
the Exchange Offer
Registration Statement is not declared effective by the SEC on or
prior to the 180th calendar day after the Closing Date, then,
commencing on the 181st calendar day after the Closing Date,
Additional Interest shall accrue on the principal amount of the
Registrable Notes over and above the otherwise applicable interest
rate at a rate of 0.25% per annum, plus an additional 0.25% per
annum from and during any period in which such event has continued
for more than 90 calendar days;
(iii)
(A) the Company has
not exchanged Exchange Notes for all Notes validly tendered and not
validly withdrawn, in accordance with the terms of the Exchange
Offer, on or prior to the 225th calendar day after the Closing Date
or (B) if the Shelf Registration Statement is required to be
filed pursuant to Section 2(b) of this Agreement but is
not declared effective by the SEC on or prior to the later of 120
calendar days after the Shelf Registration Event Date and the 225th
calendar day after the Closing Date, then, commencing on the 121
st
calendar day after such Shelf Registration Event Date or the
226th calendar day after the Closing Date, as the case may be,
Additional Interest shall accrue on the principal amount of the
Registrable Notes over and above the otherwise applicable interest
rate at the rate of 0.25% per annum, plus an additional 0.25%
per
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annum from and during any period in which such
event has continued for more than 90 calendar days;
(iv)
the Company ceases to
timely file reports with the SEC that would be required of a
reporting company under the Exchange Act whether or not the SEC
rules and regulations require the Company to file such reports
(unless the SEC will not accept the filing of such reports),
Additional Interest shall accrue on the principal amount of the
Notes or the Exchange Notes over and above the otherwise applicable
interest rate at the rate of 0.25% per annum commencing on the day
that the Company ceases to timely file such reports, plus an
additional 0.25% per annum from and during any period in which such
event has continued for more than 90 calendar days;
(v)
the Exchange Offer
Registration Statement has been declared effective and such
Exchange Offer Registration Statement ceases to be continuously
effective or the Prospectus contained in such Exchange Offer
Registration Statement ceases to be usable for its intended purpose
(A) at any time prior to the expiration of the Applicable
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 45 days (whether or not consecutive and
whether or not arising out of a single or multiple circumstances)
in any twelve-month period, Additional Interest shall accrue on the
principal amount of the Registrable Notes over and above the
otherwise applicable interest rate at a rate of 0.25% per annum
commencing on the day that (in the case of (A) above), or the
46th (cumulative) day after (in the case of (B) above), such
Exchange Offer Registration Statement ceases to be effective or the
Prospectus ceases to be usable for its intended purposes, plus an
additional 0.25% per annum from and during any period in which such
event has continued for more than 90 calendar days; or
(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 45 days
(whether or not consecutive and whether or not arising out of a
single or multiple circumstances) in any twelve-month period,
Additional Interest shall accrue on the principal amount of the
Registrable Notes over and above the otherwise applicable interest
rate at a rate of 0.25% per annum commencing on the day that (in
the case of (A) above), or the 46th (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, plus an additional 0.25% per annum from and during any
period in which such event has continued for more than 90 calendar
days;
provided, however,
that the aggregate amount
of Additional Interest in respect of the Notes, the Registrable
Notes or the Exchange Notes, as the case may be, may not
exceed
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0.50% per annum (regardless of whether multiple
events triggering Additional Interest under this subsection
(e) exist); provided, further, however, that
(1) upon the filing of the Exchange Offer Registration
Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the
case of clause (ii) above), (3) upon the exchange of
Exchange Notes for all Notes validly tendered and not validly
withdrawn (in the case of clause (iii)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of
clause (iii)(B) above), (4) upon the Company filing all
reports with the SEC that would be required of a reporting company
under the Exchange Act (in the case of clause (iv) above,
(5) upon the earlier of (x) such time as the Exchange
Offer Registration Statement which had ceased to remain effective
or the Prospectus which had ceased to be usable for its intended
purpose again becomes effective and usable for its intended
purpose, as applicable, and (y) the expiration of the
Applicable Period (each in the case of clause (v) above), and
(6) upon the earlier of (x) 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 (y) the
expiration of the Effectiveness Period (each in the case of clause
(vi) above), Additional Interest on the principal amount of
the Notes, the Registrable Notes or the Exchange Notes, as the case
may be, as a result of such clause (or the relevant subclause
thereof) shall cease to accrue;
provided, further,
however, that
if (i) the Holders do not make the representations required by
Section 2(a) of this Agreement or (ii) the Company
shall request Holders to provide the information required by the
SEC for inclusion in the Shelf Registration Statement, when
required pursuant to Section 2(b) of this Agreement, then
the Notes owned by Holders who do not provide such representations
or information, as the case may be, when required will not be
entitled to any Additional Interest for any day after the Closing
Date, regardless of the existence of any events which would
otherwise trigger Additional Interest under this subsection
(e) for such Holders.
Any
Additional Interest due pursuant to Section 2(e)(i), (ii),
(iii), (iv), (v) or (vi) above will be payable in cash on
the next succeeding April 15 or October 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)
Specific
Enforcement. Without limiting the remedies available to the
Holders, the Company acknowledges that any failure by the Company
to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable
injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder
may obtain such relief as may be required to specifically enforce
the Company’s obligations under Section 2(a) and
Section 2(b) hereof.
3.
Registration
Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company
shall:
10
(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
reasonable best 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) of this Agreement, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) of this Agreement 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
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