Oncor Electric Delivery Company
LLC
5.95% Senior Secured Notes due
2013
6.80% Senior Secured Notes due
2018
7.50% Senior Secured Notes due
2038
Registration Rights
Agreement
Credit Suisse
Securities (USA) LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
as Representatives
of the Several Initial Purchasers
named in Schedule I to the Purchase Agreement
c/o Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, NY 10010
Oncor
Electric Delivery Company LLC, a Delaware limited liability company
(the “ Issuer ”), proposes to issue and
sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) $650,000,000 in
aggregate principal amount of its 5.95% Senior Secured Notes due
2013 (the “ 2013 Notes ”), $550,000,000
in aggregate principal amount of its 6.80% Senior Secured Notes due
2018 (the “ 2018 Notes ”) and
$300,000,000 in aggregate principal amount of its 7.50% Senior
Secured Notes due 2038 (the “ 2038 Notes
”; together with the 2013 Notes and the 2018 Notes, the
“ Notes ”). In order to induce the
Purchasers (including the Market Makers) to enter into the Purchase
Agreement, the Issuer has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Purchasers and
any subsequent holder or holders of the Registrable Securities (as
defined herein). The execution and delivery of this Agreement is a
condition to the Purchasers’ obligations under the Purchase
Agreement.
1. Certain
Definitions . For purposes of this Registration Rights
Agreement (this “ Agreement ”), the
following terms shall have the following respective
meanings:
“
Additional Interest ” shall have the meaning
assigned thereto in Section 2(d).
“
Affiliate Investor ” means any of the several
Holders (as defined in the Indenture) that owns any Securities or
Exchange Securities to the extent that such person is included in a
Market Making Shelf Registration Statement in accordance with
Section 2(c) hereof.
“ Base
Interest ” shall mean the interest that would
otherwise accrue on the Securities under the terms thereof and the
Indenture, without giving effect to the provisions of this
Agreement.
“
broker-dealer ” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“
Business Day ” shall have the meaning set forth
in Rule 13e-4(a)(3) promulgated by the Commission under the
Exchange Act, as the same may be amended or succeeded from time to
time.
“
Commission ” shall mean the United States
Securities and Exchange Commission, or any other federal agency at
the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular
purpose.
“
EDGAR System ” means the EDGAR filing system of
the Commission and the rules and regulations pertaining thereto
promulgated by the Commission in Regulation S-T under the
Securities Act and the Exchange Act, in each case as the same may
be amended or succeeded from time to time (and without regard to
format).
“
Effective Time, ” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the
Commission declares the Exchange Registration Statement effective
or as of which the Exchange Registration Statement otherwise
becomes effective pursuant to the Securities Act, (ii) a Shelf
Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration Statement effective or
as of which the Shelf Registration Statement otherwise becomes
effective pursuant to the Securities Act and (iii) a Market
Making Shelf Registration, shall mean the time and date as of which
the Commission declares the Market Making Shelf Registration
Statement effective or as of which the Market Making Shelf
Registration Statement otherwise becomes effective pursuant to the
Securities Act.
“
Electing Holder ” shall mean any holder of
Registrable Securities that has timely returned a completed and
signed Notice and Questionnaire to the Issuer in accordance with
Section 3(d)(ii) and the instructions set forth in the Notice and
Questionnaire.
“
Exchange Act ” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder, as the same may be
amended or succeeded from time to time.
“
Exchange Offer ” shall have the meaning
assigned thereto in Section 2(a).
“
Exchange Registration ” shall have the meaning
assigned thereto in Section 3(c).
“
Exchange Registration Statement ” shall have
the meaning assigned thereto in Section 2(a).
“
Exchange Securities ” shall have the meaning
assigned thereto in Section 2(a).
“
holder ” shall mean each of the Purchasers and
other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as
such person owns any Registrable Securities.
“
Indenture ” shall mean the Indenture (for
Unsecured Debt Securities), dated as of August 1, 2002, between the
Issuer and The Bank of New York Mellon, as Trustee, governing the
Notes, as the same may be amended and supplemented from time to
time.
“
Issue Date ” shall mean September 8, 2008,
the date of original issuance of the Securities.
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“
Market Maker ” shall mean Goldman, Sachs &
Co. or any of its respective affiliates. If, however, any of the
other Purchasers is either formally or informally deemed by the
Commission to be an affiliate of the Issuer for purposes of
Section 4(3) of the Securities Act, then Market Maker shall
also mean such Purchaser. If any Market Maker (including as defined
in the previous sentence) is neither formally nor informally deemed
by the Commission to be an affiliate of the Issuer for purposes of
Section 4(3) of the Securities Act, then Market Maker shall
not mean such person.
“
Market-Making Conditions ” shall have the
meaning assigned thereto in Section 2(c).
“
Market Making Shelf Registration ” shall have
the meaning assigned thereto in Section 2(c).
“
Market Making Shelf Registration Statement ”
shall have the meaning assigned thereto in
Section 2(c).
“
Material Adverse Effect ” shall have the
meaning set forth in Section 5(c).
“
Notice and Questionnaire ” means a Notice of
Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto.
“
person ” shall mean a corporation, limited
liability company, association, partnership, organization,
business, individual, government or political subdivision thereof
or governmental agency.
“
Purchase Agreement ” shall mean the Purchase
Agreement dated September 3, 2008 between the Company and the
Purchasers relating to the Securities.
“
Purchasers” shall mean the Purchasers named in
Schedule I to the Purchase Agreement.
“
Registrable Securities ” shall mean the
Securities; provided, however, that a Security shall cease
to be a Registrable Security upon the earliest to occur of the
following: (i) in the circumstances contemplated by
Section 2(a), the Security has been exchanged for an Exchange
Security in an Exchange Offer as contemplated in Section 2(a) (
provided that any Exchange Security that, pursuant to the
penultimate sentence of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers
shall be deemed to be a Registrable Security with respect to
Sections 5, 6 and 9 until resale of such Registrable Security
has been effected within the 90-day period referred to in
Section 2(a)); (ii) in the circumstances contemplated by
Section 2(b), a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes
effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the
Securities Act under circumstances in which any legend borne by
such Security relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Issuer or
pursuant to the Indenture; (iv) two years have elapsed since
the Issue Date; or (v) such Security shall cease to be
outstanding.
“
Registration Default ” shall have the meaning
assigned thereto in Section 2(d).
“
Registration Default Period ” shall have the
meaning assigned thereto in Section 2(d).
“
Registration Expenses ” shall have the meaning
assigned thereto in Section 4.
3
“
Resale Period ” shall have the meaning assigned
thereto in Section 2(a).
“
Restricted Holder ” shall mean (i) a
holder that is an affiliate of the Issuer within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities
outside the ordinary course of such holder’s business,
(iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Issuer.
“
Rule 144, ” “
Rule 144A, ” “
Rule 405, ” “
Rule 415, ” “
Rule 424, ” “
Rule 430B ” and “
Rule 433 ” shall mean, in each case, such
rule promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from
time to time.
“
Secondary Offer Registration Statement ” shall
mean (i) the Shelf Registration Statement required to be filed
by the Issuer pursuant to Section 2(b), and/or (ii) the
Market Making Shelf Registration Statement required to be filed by
the Issuer pursuant to Section 2(c), in each case, as
applicable; provided, however, that references in this
Agreement to a Secondary Offer Registration Statement shall not be
deemed to include a Market Making Shelf Registration Statement at
any time during which the Market-Making Conditions are not
applicable. As used herein, references to a Secondary Offer
Registration Statement in the singular shall, if applicable, be
deemed to be in the plural.
“
Secondary Offer Shelf Registration ” shall mean
the filing of a Secondary Offer Registration Statement.
“
Securities ” shall mean, collectively, the
Notes to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
“
Securities Act ” shall mean the Securities Act
of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, as the same may be amended or succeeded
from time to time.
“
Shelf Registration ” shall have the meaning
assigned thereto in Section 2(b).
“
Shelf Registration Statement ” shall have the
meaning assigned thereto in Section 2(b).
“
Trust Indenture Act ” shall mean the Trust
Indenture Act of 1939, as amended, and the rules and regulations
promulgated by the Commission thereunder, as the same may be
amended or succeeded from time to time.
“
Trustee ” shall mean The Bank of New York
Mellon, as trustee under the Indenture, together with any
successors thereto in such capacity.
Unless
the context otherwise requires, any reference herein to a “
Section ” or “ clause
” refers to a Section or clause, as the case may be, of this
Agreement, and the words “ herein, ”
“ hereof ” and “
hereunder ” and other words of similar import
refer to this Agreement as a whole and not to any particular
Section or other subdivision.
4
2.
Registration Under the Securities Act.
(a) Except as set
forth in Section 2(b) below, the Issuer agrees to file under the
Securities Act, one or more registration statements relating to an
offer to exchange (such registration statements, together, the
“ Exchange Registration Statement, ” and
such offer, the “ Exchange Offer ”) any
and all of the Securities for a like aggregate principal amount of
debt securities issued by the Issuer, which debt securities are
substantially identical to the Securities (and are entitled to the
benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified
under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for Additional
Interest contemplated in Section 2(d) below (such new debt
securities hereinafter called “ Exchange
Securities ”). The Issuer agrees to use all
commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act no later
than 270 days after the Issue Date and consummate the Exchange
Offer within 315 days after the Issue Date. The Exchange Offer
will be registered under the Securities Act on the appropriate form
and will comply with all applicable tender offer rules and
regulations under the Exchange Act. Unless the Exchange Offer would
not be permitted by applicable law or Commission policy, the Issuer
further agrees to use all commercially reasonable efforts to
(i) commence the Exchange Offer promptly following the
Effective Time of such Exchange Registration Statement,
(ii) hold the Exchange Offer open for at least 20 Business
Days in accordance with Regulation 14E promulgated by the
Commission under the Exchange Act, or longer, if required by the
federal securities laws and (iii) exchange Exchange Securities
for all Registrable Securities that have been properly tendered and
not withdrawn promptly following the expiration of the Exchange
Offer. The Exchange Offer will be deemed to have been
“completed” only: (i) if the Exchange Securities
received by holders, other than Restricted Holders, in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by
each such holder without restriction under the Securities Act and
the Exchange Act and without material restrictions under the blue
sky or securities laws of a substantial majority of the States of
the United States of America and (ii) upon the Issuer having
exchanged, pursuant to the Exchange Offer, Exchange Securities for
all Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 20 Business Days following the
commencement of the Exchange Offer. The Issuer agrees (x) to
include in the Exchange Registration Statement a prospectus for use
in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration
Statement effective for a period (the “ Resale
Period ”) beginning when Exchange Securities are
first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 90 th day after the Exchange Offer has been completed
or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement,
such holders shall have the benefit of the rights of
indemnification and contribution set forth in Subsections 6(a),
(e), (f) and (g). Interest on each Exchange Security issued
pursuant to the Exchange Offer will accrue from the last date on
which interest was paid on the Security surrendered in exchange
therefor or, if no interest has been paid on such Security, from
the Issue Date.
(b) If (i) on
or prior to the time the Exchange Offer is completed, existing law
or Commission interpretations are changed such that the debt
securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction
under the Securities Act, (ii) the Exchange Offer has not been
completed by the 315th day following the Issue Date, (iii) any
holder of Registrable Securities notifies the Issuer prior to the
20 th
Business Day following the
completion of the Exchange Offer that: (A) it is prohibited by
law or Commission policy from participating in the Exchange Offer,
(B) it may not resell the Exchange Securities to the public
without delivering a prospectus and the prospectus
5
supplement
contained in the Exchange Registration Statement is not appropriate
or available for such resales or (C) it is a broker-dealer and
owns Securities acquired directly from the Issuer or an affiliate
of the Issuer, or (iv) the Issuer so elects, then the Issuer
shall, in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a),
file under the Securities Act one or more “shelf”
registration statements providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
Rule that may be adopted by the Commission (such filing, the
“ Shelf Registration ,” and any such
registration statements, a “ Shelf Registration
Statement ”). The Issuer agrees to use all commercially
reasonable efforts to cause the Shelf Registration Statement to
become or be declared effective within the later of 180 days
after such Shelf Registration Statement filing obligation arises or
270 days after the Issue Date; provided that if at any
time the Issuer is or becomes a “ well-known seasoned
issuer ” (as defined in Rule 405) and is
eligible to file an “ automatic shelf registration
statement ” (as defined in Rule 405), then the
Issuer shall file the Exchange Registration Statement in the form
of an automatic shelf registration statement as provided in
Rule 405. The Issuer agrees to use all commercially reasonable
efforts to keep such Shelf Registration Statement continuously
effective for two years following the Issue Date (subject to
extension pursuant to Section 3(j)) or for such shorter period
which will terminate when all of the securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities. No
holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement or to use the prospectus forming a
part thereof for resales of Registrable Securities unless such
holder is an Electing Holder. The Issuer agrees, after the
Effective Time of the Shelf Registration Statement and promptly
upon the request of any holder of Registrable Securities that is
not then an Electing Holder, to use all commercially reasonable
efforts to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement (whether
by post-effective amendment thereto or by filing a prospectus
pursuant to Rules 430B and 424(b) under the Securities Act
identifying such holder); provided, however, that nothing in
this sentence shall (A) relieve any such holder of the
obligation to return a completed and signed Notice and
Questionnaire to the Issuer in accordance with
Section 3(d)(ii) or (B) require the Issuer to file more
than one post-effective amendment to the Shelf Registration
Statement in any 45-day period.
(c) For the sole
benefit of each Market Maker or any of their affiliates (as defined
under the rules and regulations of the Commission), so long as
(x) any of the Registrable Securities are outstanding and
(y) it would be necessary under applicable laws, rules and
regulations, in the reasonable opinion of any Market Maker, for
such Market Maker or any of its affiliates to deliver a prospectus
in connection with market-making activities with respect to the
Registrable Securities or Exchange Securities and such Market Maker
or such affiliate proposes to make a market in the Registrable
Securities or Exchange Securities as part of its business in the
ordinary course (the “ Market-Making Conditions
”), the following provisions shall apply for the sole benefit
of each Market Maker and its affiliates (it being understood that
only a person for whom the Market-Making Conditions apply at the
applicable time shall be entitled to the use of a Market Making
Shelf Registration Statement and related provisions of this
Agreement), the Issuer shall use all commercially reasonable
efforts to file under the Securities Act, prior to the Effective
Time of an Exchange Registration Statement or a Shelf Registration
Statement, whichever occurs first, a “shelf”
registration statement (which may be the Exchange Registration
Statement or the Shelf Registration Statement if permitted by the
rules and regulations of the Commission) pursuant to Rule 415
under the Securities Act or any similar rule that may be adopted by
the Commission providing for the registration of, and the sale on a
continuous or delayed basis in secondary transactions by each
Market Maker of, Securities (in the event of a Shelf Registration)
or Exchange Securities (in the event of an Exchange Offer) (such
filing, the “ Market Making Shelf Registration,
” and such registration
6
statement, the
“ Market Making Shelf Registration Statement
”). The Issuer agrees to use all commercially reasonable
efforts to cause the Market Making Shelf Registration Statement to
become or be declared effective on or prior to (i) the date
the Exchange Offer is completed pursuant to Section 2(a) above or
(ii) the date the Shelf Registration becomes or is declared
effective pursuant to Section 2(b) above, and to keep such Market
Making Shelf Registration Statement continuously effective for so
long as any Market Maker may be required to deliver a prospectus in
connection with transactions in the Securities or the Exchange
Securities, as the case may be. In the event that a Market Maker
holds Securities at the time an Exchange Offer is to be conducted
under Section 2(a) above, the Issuer agrees that the Market Making
Shelf Registration shall provide for the resale by such Market
Maker of such Securities and shall use its commercially reasonable
efforts to keep the Market Making Shelf Registration Statement
continuously effective until such time as such Market Maker
determines in its reasonable judgment that it is no longer required
to deliver a prospectus in connection with the sale of such
Securities. Notwithstanding the foregoing or anything contained in
this Agreement to the contrary, upon 30 days prior written
notice to the Market Makers, the Issuer shall not be required to
maintain the effectiveness of the Market Making Shelf Registration
Statement at any time after the tenth anniversary of the Issue
Date.
Notwithstanding
anything to the contrary in this Section 2(c), upon at least
10 Business Days prior written notice to each Market Maker, the
Issuer may elect to cause the Market Making Shelf Registration
Statement to provide for the registration of, and the sale on a
continuous or delayed basis in secondary transactions by any
Affiliate Investor of, Securities (in the event of a Shelf
Registration) or Exchange Securities (in the event of an Exchange
Offer) regardless of whether such Affiliate Investor otherwise
would qualify as an Electing Holder eligible to participate in a
Shelf Registration Statement in accordance with Section 2(b)
hereof; provided however , if any Market Maker requests in
writing at any time that the Issuer exclude any or all Affiliate
Investors from the Market Making Shelf Registration Statement, then
the Issuer shall either omit such Affiliate Investors from
inclusion in the Market Making Shelf Registration Statement or
promptly amend the Market Making Shelf Registration Statement to
exclude them from the Market Making Shelf Registration Statement.
The inclusion of any Affiliate Investor in the Market Making Shelf
Registration Statement shall not affect the rights of any Market
Maker to make any determinations otherwise provided exclusively to
each Market Maker in this Agreement.
Notwithstanding
the foregoing, the Issuer may suspend the offering and sale under
the Market Making Shelf Registration Statement for one or more
periods if the Issuer determines that such registration would
require (i) disclosure of an event at such time as could
reasonably be expected to have a material adverse effect on the
business operations or prospects of the Issuer (ii) disclosure
of material information relating to a corporate development or
(iii) such Market Making Shelf Registration Statement or
amendment or supplement thereto contains an untrue statement of
material fact or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the
Issuer shall promptly notify each Market Maker when the Market
Making Shelf Registration Statement may once again be
used.
(d) In the event
that (i) the Exchange Registration Statement (or, if a change
in law or in applicable interpretations of the staff of the
Commission does not permit the Issuer to effect an Exchange Offer,
the Shelf Registration Statement) is not declared effective by the
Commission within 270 days after the Issue Date; or
(ii) the Exchange Offer is not consummated within
315 days after the Issue Date (unless the Issuer is not
permitted to effect an Exchange Offer as specified in clause
(i) above); or (iii) the Shelf Registration Statement
(except as specified in clause (i)) is not declared effective by
the Commission within the later of (x) 180 days after being
required to file a Shelf Registration Statement and
(y) 270 days after the Issue Date; or (iv) (A) after
the Exchange Registration Statement is
7
declared
effective, such registration statement thereafter ceases to be
effective at any time during the period in which the Issuer is
required to keep it effective hereunder, or (B) after the Shelf
Registration Statement has been declared effective, such
registration statement ceases to be effective or usable in
connection with resales of Securities at any time prior to the
expiration of two years from the Issue Date (other than as
expressly permitted by this Agreement or after such time as all
Securities have been disposed of thereunder or otherwise cease to
be Registrable Securities) (each such event referred to in clauses
(i) through (iv), a “ Registration Default
” and each period during which a Registration Default has
occurred and is continuing, a “ Registration Default
Period ”), then, as liquidated damages for such
Registration Default, subject to the provisions of
Section 9(b), additional interest (“ Additional
Interest ”), in addition to the Base Interest, shall
accrue on the outstanding principal amount of the affected
Registrable Securities at a per annum rate of 0.50% until the
earlier of the expiration of the Registration Default Period or the
second anniversary of the Issue Date; provided, however,
that the Additional Interest rate may not exceed in the aggregate
.50% per annum. Additional Interest shall accrue and be payable
only with respect to a single Registration Default at any given
time, notwithstanding the fact that multiple Registration Defaults
may exist at such time. The accrual of Additional Interest shall be
the exclusive monetary remedy available to the holders of
Registrable Securities for any Registration Default. Any amounts of
Additional Interest due pursuant to this Section 2(d) will be
payable in cash on the relevant payment dates for the payment of
interest on the Notes pursuant to the Indenture.
(e) The Issuer
shall take all actions necessary or advisable to be taken by it to
ensure that the transactions contemplated herein are effected as so
contemplated.
(f) Any reference
herein to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any
time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such
time.
3.
Registration Procedures .
If
the Issuer files a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c), the following
provisions shall apply:
(a) At or before
the Effective Time of the Exchange Registration, the Shelf
Registration or the Market Making Shelf Registration, whichever may
be first, the Issuer shall qualify the Indenture under the Trust
Indenture Act.
(b) In the event
that such qualification would require the appointment of a new
trustee under the Indenture, the Issuer shall appoint a new trustee
thereunder pursuant to the applicable provisions of the
Indenture.
(c) In connection
with the Issuer’s obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a)
(the “ Exchange Registration ”), if
applicable, the Issuer shall:
(i) prepare and
file with the Commission an Exchange Registration Statement on any
form which may be utilized by the Issuer and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by
Section 2(a), and use all commercially reasonable efforts to
cause such Exchange Registration Statement to become effective no
later than 270 days after the Issue Date;
8
(ii) promptly
prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement
for the periods and purposes contemplated in Section 2(a) and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, as
such broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly
notify each broker-dealer that has requested or received copies of
the prospectus included in such Exchange Registration Statement,
and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus
or for additional information relating to such Exchange
Registration Statement or prospectus, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Exchange Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Issuer contemplated
by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (F) of the
occurrence of any event that causes the Issuer to become an
“ineligible issuer” as defined in Rule 405,
(G) if at any time during the Resale Period when a prospectus
is required to be delivered under the Securities Act, that such
Exchange Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act or contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing or
(H) when the Issuer reasonably determines that a
post-effective amendment to the Exchange Registration Statement
would be appropriate;
(iv) in the event
that the Issuer would be required, pursuant to Section
3(c)(iii)(G), to notify any broker-dealers holding Exchange
Securities (except as otherwise permitted during any period in
which dispositions under the registration statement is suspended
hereunder), promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and shall not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
9
(v) use all
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use all
commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, to the extent required
by such laws, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period, (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions and (D) obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period; provided, however, that the Issuer shall not be
required for any such purpose to (1) qualify as a foreign
limited liability company in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or become subject to taxation in
any such jurisdiction or (3) make any changes to its
certificate of formation or limited liability company agreement or
other governing documents or any agreement between it and its
members;
(vii) provide a
CUSIP number for all Exchange Securities, not later than the
applicable Effective Time; and
(viii) comply with
all applicable rules and regulations of the Commission, and make
generally available to its securityholders, no later than eighteen
months after the Effective Time of such Exchange Registration
Statement, an earnings statement of the Issuer and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Issuer, Rule 158 thereunder).
(d) In connection
with the Issuer’s obligations with respect to any Secondary
Offer Shelf Registration, if applicable, the Issuer shall use all
commercially reasonable efforts to cause the applicable Secondary
Offer Registration Statement to permit the disposition of
Registrable Securities by the holders thereof, in the case of the
Shelf Registration, and of Securities or Exchange Securities by any
Market Maker and Affiliate Investor in the case of a Market Making
Shelf Registration (in each case, subject to any applicable period
in which dispositions under the registration statement is suspended
hereunder), in accordance with the intended method or methods of
disposition thereof provided for in the applicable Secondary Offer
Registration Statement. In connection therewith, the Issuer
shall:
(i)
(A) prepare and file with the Commission, within the time
periods specified in Section 2(b) and Section 2(c) hereof, as
applicable, a Secondary Offer Registration Statement on any form
which may be utilized by the Issuer, which shall register all of
the Registrable Securities, in the case of a Shelf Registration,
and the Securities and Exchange Securities, in the case of a Market
Making Shelf Registration, for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the holders of the Registrable Securities as, from
time to time, may be Electing Holders, in the case of a Shelf
Registration, or any Market Maker and any Affiliate Investor, in
the case of a Market Making Shelf Registration, and (B) use
all commercially
10
reasonable
efforts to cause each such Secondary Offer Registration Statement
to become effective within the time periods specified in Section
2(b) and Section 2(c) hereof, as applicable;
(ii) mail the
Notice and Questionnaire to the holders of Registrable Securities
(A) not less than 30 days prior to the anticipated
Effective Time of the Shelf Registration Statement or (B) in
the case of an “automatic shelf registration statement”
(as defined in Rule 405), mail the Notice and Questionnaire to
the holders of Registrable Securities not later than the Effective
Time of such Shelf Registration Statement, and in any such case no
holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement, and no holder shall be entitled
to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless and until such holder
has returned a completed and signed Notice and Questionnaire to the
Issuer; in the case of any Affiliate Investor that desires to
participate in any Market Making Shelf Registration, such Affiliate
Investor shall have returned a completed and signed Notice and
Questionnaire to the Issuer prior to the time that the Issuer
notifies each Market Maker of its intention to include such
Affiliate Investor in the Market Making Shelf Registration, and the
responses by the Affiliate Investor in such Notice and
Questionnaire shall be reasonably satisfactory to each of the
Issuer and each Market Maker; provided, however, that
holders of Registrable Securities (in the case of a Shelf
Registration Statement) or any Affiliate Investor (in the case of a
Market Making Shelf Registration) shall have at least 28 calendar
days from the date on which the Notice and Questionnaire is first
mailed to such holder or provided to such Affiliate Investor to
return a completed and signed Notice and Questionnaire to the
Issuer. Each holder as to which any Shelf Registration Statement is
being filed and each Affiliate Investor agrees promptly to furnish
to the Company all information with respect to such Holder or
Affiliate Investor, as the case may be, necessary to make the
information previously furnished to the Company by such holder or
Affiliate Investor not materially misleading;
(iii) after the
Effective Time of the Shelf Registration Statement, upon the
request of any holder that could not have participated in the
Exchange Offer, promptly send a Notice and Questionnaire to such
holder; provided that (A) the Issuer shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable
such holder to use the prospectus forming a part thereof for
resales of Registrable Securities unless the Issuer is permitted by
applicable law to take such action by means of a prospectus
supplement and such holder has returned a completed and signed
Notice and Questionnaire to the Issuer and (B) nothing in this
clause (iii) shall require the Issuer to file a prospectus
supplement more than once in any 30-day period;
(iv) as soon as
practicable (A) prepare and file with the Commission such
amendments and supplements to the Secondary Offer Registration
Statement and the prospectus included therein as may be necessary
to effect and maintain the effectiveness of such Secondary Offer
Registration Statement for the period specified in Section 2(b) and
Section 2(c) hereof, as applicable, and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Secondary Offer
Registration Statement and, in the case of an amendment to or
supplement of the Market Making Shelf Registration Statement, and
(B) furnish to the Electing Holders, in the case of a Shelf
Registration, and each Market Maker and any Affiliate Investor, in
the case of a Market Making Shelf Registration, copies of any
such
11
supplement or
amendment simultaneously with or prior to its being used or filed
with the Commission to the extent such documents are not publicly
available on the Commission’s EDGAR System;
(v) comply with
the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities, Securities or
Exchange Securities, as applicable, covered by such Secondary Offer
Registration Statement in accordance with the intended methods of
disposition provided for therein by the Electing Holders, in the
case of a Shelf Registration, or any Market Maker and any Affiliate
Investor, in the case of a Market Making Shelf
Registration;
(vi) provide
(A) with respect to a Shelf Registration, a representative of
the Electing Holders and not more than one counsel for all the
Electing Holders, in each case designated by the holders of at
least a majority in aggregate principal amount of the Registrable
Securities held by the Electing Holders (which counsel shall be
reasonably satisfactory to the Issuer), and (B) with respect
to a Market Making Shelf Registration, each Market Maker and one
counsel for all Market Makers and any Affiliate Investor, the
opportunity to reasonably participate in the preparation of such
Secondary Offer Registration Statement, each prospectus included
therein or filed with the Commission and each amendment
thereto;
(vii) for a
reasonable period prior to the filing of such Secondary Offer
Registration Statement, and throughout the periods specified in
Section 2(b) or Section 2(c) hereof, as applicable, make available
at reasonable times at the Issuer’s principal place of
business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall certify to
the Issuer that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration, or the
Securities or Exchange Securities pursuant to the Market Making
Shelf Registration, as applicable, such financial and other
information and books and records of the Issuer, and cause the
officers, employees, counsel and independent certified public
accountants of the Issuer to respond to such inquiries, as shall be
reasonably necessary (and in the case of counsel, not violate an
attorney-client privilege, in such counsel’s reasonable
belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering on behalf of the Electing Holders shall be conducted by
one counsel designated by the holders of at least a majority in
aggregate principal amount of the Registrable Securities held by
the Electing Holders at the time outstanding and any managing
underwriter participating in the distribution of the Registrable
Securities being sold; and provided further that each such
party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Issuer as being confidential, until such time as
(A) such information becomes a matter of public record (whether by
virtue of its inclusion in such Secondary Offer Registration
Statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Issuer prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Secondary Offer Registration
Statement or the prospectus included therein or in an amendment to
such Secondary Offer Registration Statement or an amendment or
supplement to such prospectus in order that such Secondary Offer
Registration Statement, prospectus, amendment or supplement, as the
case may be, complies with applicable requirements of the federal
securities
12
laws and the
rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances
then existing;
(viii) promptly
notify each of the Electing Holders, any managing underwriter, each
Market Maker or each of the Affiliate Investors, as applicable, and
confirm such advice in writing, (A) when such Secondary Offer
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Secondary Offer Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto which are relevant to the Electing Holders, any
managing underwriter, any Market Maker or an Affiliate Investor, as
applicable, or any request by the Commission for amendments or
supplements to such Secondary Offer Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Secondary Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Issuer set forth in
Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification of the
Registrable Securities or the Securities or Exchange Securities, as
applicable, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (F) of the
occurrence of any event that causes the Issuer to become an
“ineligible issuer” as defined in Rule 405,
(G) if at any time when a prospectus is required to be
delivered under the Securities Act, that such Secondary Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act or contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing or
(H) when the Issuer reasonably determines that a
post-effective amendment to the Secondary Offer Registration
Statement would be appropriate;
(ix) use all
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Secondary Offer
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if requested
by any managing underwriter, Electing Holder, any Market Maker or
any Affiliate Investor, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission
and, if in connection with such prospectus supplement or
post-effective amendment, as such managing underwriter, Electing
Holder, such Market Maker or such Affiliate Investor specifies
should be included therein relating to the terms of the sale of
such Registrable Securities or such Securities or Exchange
Securities, as applicable, including information with respect to
the principal amount of Registrable Securities or Securities or
Exchange Securities, as applicable, being sold by such Electing
Holder, managing underwriter, such Market Maker or any Affiliate
Investor, the name and description of such managing underwriter,
Electing Holder, such Market Maker or any Affiliate Investor, the
offering price of such
13
Registrable
Securities or such Securities or Exchange Securities, as
applicable, and any discount, commission or other compensation
payable in respect thereof and with respect to any other terms of
the offering of the Registrable Securities or the Securities or
Exchange Securities, as applicable, to be sold by such Electing
Holder, managing underwriter, such Market Maker or any Affiliate
Investor; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish upon
request to each managing underwriter, each Market Maker and each
Electing Ho
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