REGISTRATION RIGHTS AGREEMENT
Exhibit
4(d)
|
EXECUTION
COPY
|
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
April 8, 2008 by and among Illinois Power Company, d/b/a AmerenIP, an Illinois
corporation (the “Company”), and the Initial Purchasers (as hereinafter
defined).
This
Agreement is made pursuant to the Purchase Agreement dated April 1, 2008 (the
“Purchase Agreement”), by and among the Company, as issuer of $337,000,000
aggregate principal amount of 6.25% Senior Secured Notes 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 8, 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 6.25% Senior Secured Notes 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 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 June 1, 2006 between the Company and the
Trustee (including the terms of the Notes to be set forth in an order of the
Company thereunder), as the same may be amended or supplemented from time to
time in accordance with the terms thereof.
“Initial
Purchasers” shall mean Barclays Capital Inc., BNP Paribas Securities Corp.,
Xxxxxx Brothers Inc., Fifth Third Securities, Inc. and U.S. Bancorp Investments,
Inc.
“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 121st
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
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
(v) 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 Registrable Notes may
not exceed 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
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
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purpose,
as applicable, and (y) the expiration of the Applicable Period (each in the case
of clause (iv) above), and (5) 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 (v) above), Additional Interest on the principal amount of
the Registrable Notes 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) or (v)
above will be payable in cash on the next succeeding April 1 or October 1, 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:
(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
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Broker-Dealer
who seeks to sell Exchange Notes, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish
to and afford the Holders of the Registrable Notes and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including, upon request, copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed; and the Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders of the Registrable Notes, depending solely upon
which Holders must be afforded the opportunity of such review, or such
Participating Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object in a timely manner;
(b) prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
effective for the Effectiveness Period or the Applicable Period, as the case may
be, and cause each Prospectus to be supplemented, if so determined by the
Company or requested by the SEC, by any required prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in
force) under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition of all Notes covered
by each Registration Statement during the Effectiveness Period or the Applicable
Period, as the case may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in
the case of an Exchange Offer Registration Statement, if in the reasonable
opinion of counsel to the Company there is a question as to whether the Exchange
Offer is permitted by applicable law, seek a no-action letter or other favorable
decision from the SEC allowing the Company to consummate an Exchange Offer for
such Notes. The Company hereby agrees to pursue the issuance of such
a decision to the SEC staff level but shall not be required to take commercially
unreasonable action to effect a change of SEC policy. The Company
hereby agrees, however, to (i) participate in telephonic conferences with the
SEC, (ii) deliver to the SEC staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (iii) diligently
pursue a resolution (which need not be favorable) by the SEC staff of such
submission;
(d) in
the case of an Exchange Offer Registration Statement, prior to the effectiveness
of such statement, provide a supplemental letter to the SEC (i) stating that the
Company is registering the Exchange Offer in reliance on the position of the SEC
enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991), Xxxxx & Wood LLP
(available February 7, 1997) and, if applicable, any no-action letter obtained
pursuant to Section 3(c) of this Agreement and (ii) including a representation
that the Company has not entered into any arrangement or understanding with any
Person to distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Company’s information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or
11
understanding
with any Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer;
(e) in
the case of a Shelf Registration, (i) notify each Holder of Registrable Notes
included in the Shelf Registration Statement, at least five Business Days prior
to filing, that a Shelf Registration Statement with respect to the Registrable
Notes is being filed and advising such Holder that the distribution of
Registrable Notes will be made in accordance with the method selected by the
Majority Holders of the Registrable Notes, (ii) furnish to each Holder of
Registrable Notes included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Notes, if any, without
charge, as many copies of each Prospectus, including each preliminary
prospectus, and any amendment or supplement thereto, and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Notes and (iii) consent to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Notes included in the Shelf Registration
Statement in connection with the offering and sale of the Registrable Notes
covered by the Prospectus or any amendment or supplement thereto;
(f) in
the case of a Shelf Registration, register or qualify the Registrable Notes
under all applicable state securities or “blue sky” laws of such jurisdictions
by the time the applicable Registration Statement is declared effective by the
SEC as any Holder of Registrable Notes covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Notes shall
reasonably request in writing in advance of such date of effectiveness, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable such Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Notes owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(f), (ii) file any general consent to
service of process in any jurisdiction where it would not otherwise be subject
to such service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(g) (1)
in the case of a Shelf Registration or (2) if Participating Broker-Dealers
from whom the Company has received prior written notice that they will be using
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(u) hereof, are seeking to sell Exchange Notes and are
required to deliver Prospectuses, promptly notify each Holder of Registrable
Notes, or such Participating Broker-Dealers, as the case may be, their counsel
and the managing underwriters, if any, and promptly confirm such notice in
writing (i) when a Registration Statement has become effective and when any
post-effective amendments thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the qualification of the Registrable Notes or the
Exchange Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(f) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the
12
closing
of any sale of Registrable Notes covered thereby, the representations and
warranties of the Company contained in any purchase agreement, securities sales
agreement or other similar agreement cease to be true, correct and complete in
all material respects, (v) of the happening of any event or the failure of
any event to occur or the discovery of any facts, during the Effectiveness
Period, which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing such
Registration Statement not to be effective or the Prospectus not to be useable
for resales and (vi) of the reasonable determination of the Company that a
post-effective amendment to the Registration Statement would be
appropriate;
(h) obtain
the withdrawal of any order suspending the effectiveness of a Registration
Statement as soon as practicable;
(i) in
the case of a Shelf Registration, furnish to each Holder of Registrable Notes
included within the coverage of such Shelf Registration Statement, without
charge, at least one conformed copy of each Registration Statement relating to
such Shelf Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(j) in
the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Notes to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold and not bearing any
restrictive legends (except any customary legend borne by securities held
through The Depository Trust Company or any similar depositary) and in such
denominations (consistent with the provisions of the Indenture and the officer’s
certificate establishing the forms and the terms of the Notes pursuant to the
Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request (provided such names are consistent with the
names of the selling security holders set forth in the Shelf Registration
Statement) at least two Business Days prior to the closing of any sale of
Registrable Notes pursuant to such Shelf Registration Statement;
(k) in
the case of a Shelf Registration or an Exchange Offer Registration, promptly
after the occurrence of any event specified in Section 3(g)(ii), 3(g)(iii),
3(g)(v) (subject to the 45-day cumulative grace period within any twelve-month
period provided for in Section 2(e)(iv)(B) and Section 2(e)(v)(B)) and 3(g)(vi)
hereof, prepare a supplement or post-effective amendment to such Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Notes, such Prospectus will not include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and the Company shall notify each Holder to
suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
13
(l) obtain
a CUSIP number, and any other appropriate security identification number, for
the Exchange Notes or the Registrable Notes, as the case may be, not later than
the effective date of a Registration Statement, and provide the Trustee with
certificates for the Exchange Notes or the Registrable Notes, as the case may
be, in a form eligible for deposit with the Depositary;
(m) cause
the Indenture to be qualified under the Trust Indenture Act of 1939, as amended
(the “TIA”), in connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be, and cooperate with the Trustee and the
Holders to effect such changes to such documents as may be required for them to
be so qualified in accordance with the terms of the TIA and execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such documents to be so qualified in a timely
manner;
(n) in
the case of a Shelf Registration, enter into such agreements (including
underwriting agreements) as are customary in underwritten offerings and take all
such other appropriate actions in connection therewith as are reasonably
requested by the Holders of at least 25% in aggregate principal amount of the
Registrable Notes covered thereby in order to expedite or facilitate the
registration or the disposition of the Registrable Notes;
(o) in
the case of a Shelf Registration, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, if requested by (x) an Initial Purchaser, in the case where such
Initial Purchaser holds Notes acquired by it as part of its initial placement,
or (y) Holders of at least 25% in aggregate principal amount of the Registrable
Notes covered thereby: (i) make such representations and warranties to
Holders of such Registrable Notes and the underwriters (if any), with respect to
the business of the Company as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which may be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a majority
in amount of the Registrable Notes being sold, addressed to each selling Holder
and the underwriters (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed that the matters to
be covered by such opinion may be subject to customary qualifications and
exceptions); (iii) obtain “cold comfort” letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriters from the
independent registered public accountants of the Company, addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in “cold comfort” letters in connection with
underwritten offerings and such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement and the managing underwriters) customary for such
agreements with respect to all
14
parties
to be indemnified pursuant to said Section (including, without limitation, such
underwriters and selling Holders); and in the case of an underwritten
registration, the above requirements shall be satisfied at each closing under
the related underwriting agreement or as and to the extent required
thereunder;
(p) if
(1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Notes or Participating Broker-Dealer, as applicable, who
certifies to the Company that it has a current intention to sell Registrable
Notes pursuant to the Shelf Registration, any underwriter participating in any
such disposition of Registrable Notes, if any, and any attorney, accountant or
other agent retained by any such selling Holder, Participating Broker-Dealer, as
the case may be, or underwriter (collectively, the “Inspectors”), at the offices
where normally kept, during the Company’s normal business hours, all financial
and other records, pertinent organizational and operational documents and
properties of the Company (collectively, the “Records”) as shall be reasonably
necessary to enable them to conduct due diligence activities, and cause the
officers, trustees and employees of the Company to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement; Records and information which the
Company determines, in good faith, to be confidential and any Records and
information which it notifies the Inspectors are confidential shall not be
disclosed to any Inspector except where (i) the disclosure of such Records
or information is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records
or information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been made
generally available to the public; each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to agree in writing
that Records and information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until such is
made generally available to the public through no fault of an Inspector or a
selling Holder; and each selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to further agree in writing that it
will, upon learning that disclosure of such Records or information is sought in
a court of competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records and
information deemed confidential;
(q) comply
with all applicable rules and regulations of the SEC so long as any provision of
this Agreement shall be applicable and make generally available to its security
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which
15
statements
shall cover said 12-month periods, provided that the obligations
under this paragraph (q) shall be satisfied by the timely filing of quarterly
and annual reports on Forms 10-Q and 10-K under the Exchange Act;
(r) if
an Exchange Offer is to be consummated, upon delivery of the Registrable Notes
by Holders to the Company (or to such other Person as directed by the Company),
in exchange for the Exchange Notes, the Company shall xxxx, or cause to be
marked, on such Notes delivered by such Holders that such Notes are being
cancelled in exchange for the Exchange Notes; it being understood that in no
event shall such Notes be marked as paid or otherwise satisfied;
(s) cooperate
with each seller of Registrable Notes covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required to be
made with the FINRA;
(t) take
all other steps reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby;
(u) (A) in
the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution,”
which section shall be reasonably acceptable to the Initial Purchasers or
another representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential “underwriter” status of any
broker-dealer that holds Registrable Notes acquired for its own account as a
result of market-making activities or other trading activities (a “Participating
Broker-Dealer”) and that will be the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes to be received by such broker-dealer
in the Exchange Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in the
reasonable judgment of the Initial Purchasers or such other representative,
represent the prevailing views of the staff of the SEC, including a statement
that any such broker-dealer who receives Exchange Notes for Registrable Notes
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice referred
to in Section 3(g) of this Agreement, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary Prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (iii) use its 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 Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such requirements
under the Securities Act and applicable rules and
16
regulations
in order to resell the Exchange Notes; provided, however, that such
period shall not be required to exceed one year following the completion of the
Exchange Offer (or such longer period if extended pursuant to the last sentence
of Section 3 hereof) (the “Applicable Period”), and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
“If the
exchange offeree is a broker-dealer holding Registrable Notes acquired for its
own account as a result of market-making activities or other trading activities,
it will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Notes received in respect of such
Registrable Notes pursuant to the Exchange Offer”;
and (y) a
statement to the effect that by a Participating Broker-Dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act; and (B) in the case of any Exchange Offer
Registration Statement, the Company agrees to deliver to the Initial Purchasers
or to another representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon consummation
of the Exchange Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to such Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officer’s certificate substantially similar to that
specified in Section 7(f) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of debt and
(iii) upon the effectiveness of the Exchange Offer Registration Statement,
comfort letters, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The
Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the proposed disposition by said seller as may be
required by the staff of the SEC to be included in a Registration
Statement. The Company may exclude from such registration the
Registrable Notes of any seller who fails to furnish such information within a
reasonable time after receiving such request. The Company shall have
no obligation to register under the Securities Act the Registrable Notes of a
seller who so fails to furnish such information.
In the
case of a Shelf Registration Statement, or if Participating Broker-Dealers who
have notified the Company that they will be using the Prospectus contained in
the Exchange Offer Registration Statement as provided in this Section 3(u) are
seeking to sell Exchange Notes and are required to deliver Prospectuses, each
Holder agrees that, upon receipt of any notice from the Company of the
occurrence of any event specified in Section 3(g)(ii), 3(g)(iii), 3(g)(v) or
3(g)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof or until it is advised
17
in
writing (the “Advice”) by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company’s expense) all copies in such Holder’s possession,
other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Notes or Exchange Notes, as the case may
be, current at the time of receipt of such notice. If the Company
shall give any such notice to suspend the disposition of Registrable Notes or
Exchangeable Notes, as the case may be, pursuant to a Registration Statement,
the Company shall use its reasonable best efforts to file and have declared
effective (if an amendment), as soon as practicable after the resolution of the
related matters, an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement is required to
be maintained effective and the Prospectus usable for resales pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company shall have made
available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and
Contribution. (a) In
connection with a Shelf Registration Statement or in connection with any
delivery of a Prospectus contained in an Exchange Offer Registration Statement
by any Participating Broker-Dealer or Initial Purchaser, as applicable, who
seeks to sell Exchange Notes, the Company shall indemnify, defend and hold
harmless each Holder of Registrable Notes included within any such Shelf
Registration Statement and each Participating Broker-Dealer or Initial Purchaser
selling Exchange Notes, underwriters, their officers and employees, and each
Person, if any, who controls any such Person within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to which that
Holder, Participating Broker-Dealer, Initial Purchaser, underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
any other statute or common law and shall reimburse each Holder, Participating
Broker-Dealer, Initial Purchaser, underwriter, officer, employee or controlling
person for any legal or other expenses (including to the extent hereinafter
provided, reasonable counsel fees) incurred by that Holder, Participating
Broker-Dealer, Initial Purchaser, underwriter, officer, employee or controlling
person in connection with investigating any such losses, claims, damages,
liabilities or in connection with defending any action, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of, or are based
upon, (A) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(or any amendment or supplement thereto), covering Registrable Notes or Exchange
Notes, as applicable, (B) the omission or alleged omission to state in any
Registration Statement (or any amendment thereto) or Prospectus (or any
amendment or supplement thereto) any material fact required to be stated therein
or necessary to make the statements therein not misleading, or (C) any act or
failure to act or any alleged act or failure to act by any Holder, Participating
Broker-Dealer, Initial Purchaser, underwriter, officer, employee or controlling
person in connection with, or relating in any manner to, the Notes or the
transactions contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (A) or (B) above (provided that the Company shall not
be liable under this clause (C) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any acts or failures to act under
taken or omitted to be taken such by such Holder, Participating Broker-Dealer,
Initial Purchaser or underwriter through its gross negligence or willful
misconduct);
18
provided, however, that this
indemnity does not apply to any loss, claim, damage, liability, expense or
action arising out of (i) an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished in writing to the Company by the Initial Purchasers or any
Holder, underwriter or Participating Broker-Dealer for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) or (ii) the failure of any Holder to comply with the
provisions of the last paragraph of Section 3 of this Agreement; provided, further, however,
that no indemnity by the Company to any Holder, Participating
Broker-Dealer, Initial Purchaser, underwriter, officer, employee or controlling
person shall apply in respect of any final Prospectus furnished by such person
to a person who receives the Exchange Notes or the Registrable Notes, insofar as
such indemnity relates to any untrue or misleading statement or omission made in
such final Prospectus but eliminated or remedied prior to the confirmation of
the sale of such Exchange Notes or Registrable Notes in any amendment or
supplement thereto, unless a copy of such amendment or supplement (excluding any
documents incorporated by reference in such final Prospectus) is furnished by
such person on or before the confirmation of such sale.
(b) Each
of the Initial Purchasers and each Holder, underwriter or Participating
Broker-Dealer agrees, severally and not jointly, to indemnify and hold harmless
the Company, its officers and employees, and each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Company, its officers, employees or
controlling persons may become subject, under the Securities Act or any other
statute or common law, and shall reimburse the Company and any such officer,
employee or controlling person for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims, damages, liabilities or
in connection with defending any action insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of, or are based upon, (A) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (or any
amendment or supplement thereto), covering Registrable Notes or Exchange Notes,
as applicable, or (B) the omission or alleged omission to state in any
Registration Statement (or any amendment thereto) or Prospectus (or any
amendment or supplement thereto) any material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Initial Purchaser, Holder, underwriter or
Participating Broker-Dealer specifically for inclusion therein; provided, however, that in
the case of a Shelf Registration Statement, no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Notes pursuant to such Shelf Registration
Statement.
(c) In
case any action shall be brought against any party in respect of which indemnity
may be sought pursuant to paragraph (a) or (b) of this Section 4, such party
(hereinafter called the indemnified party) shall promptly notify the party or
parties against whom indemnity shall be sought hereunder (hereinafter called the
indemnifying party) in writing, and the indemnifying party shall have the right
to participate at its own expense in the defense or, if it so elects, to assume
(in conjunction with any other indemnifying party) the defense thereof,
19
including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses. If the indemnifying party shall
elect not to assume the defense of any such action, the indemnifying party shall
reimburse the indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified party
shall have the right to employ separate counsel in any such action in which the
defense has been assumed by the indemnifying party and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the named parties to
any such action (including any impleaded parties) include each of such
indemnified party and the indemnifying party and such indemnified party shall
have been advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for this reason it
is not desirable for the same counsel to represent both the indemnifying party
and the indemnified party (it being understood, however, that the indemnifying
party 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 such indemnified
party (plus any local counsel retained by such indemnified party in its
reasonable judgment)). The indemnified party shall be reimbursed for
all such fees and expenses as they are incurred. The indemnifying
party shall not be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity has or 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 action, suit or proceeding.
(d) If
the indemnification provided for under this Section 4 is unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company from the initial offering and sale of the Notes, on the one hand,
and by a Holder from receiving Registrable Notes or Exchange Notes registered
under the Securities Act, on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
such Holder on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company
on the one hand and the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by any of the Initial
Purchasers and such parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
20
The
Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4, an
indemnifying party that is a Holder of Registrable Notes or Exchange Notes shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Notes or the Exchange Notes sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged
omission. The Holders’ obligations in this Section 4 to contribute
shall be several in proportion to the principal amount of Registrable Notes and
Exchange Notes registered for them and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 4, each Affiliate of a Holder, and each director, officer and
employee and Person, if any, who controls a Holder or such Affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such Holder and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
5. Participation in an Underwritten
Registration. No Holder
may participate in an underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder’s Registrable Notes on the basis provided in
the underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters.
The
Holders of Registrable Notes covered by the Shelf Registration Statement who
desire to do so may sell the Notes covered by such Shelf Registration in an
underwritten offering, subject to the provisions of Section 3(n) hereof. In any
such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in
aggregate principal amount of the Registrable Notes included in such offering;
provided, however, that
such underwriters and managers must be reasonably satisfactory to the
Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A.
For so
long as the Company is subject to the reporting requirements of Section 13 or 15
of the Exchange Act and any Registrable Notes remain outstanding, the Company
will file the reports required to be filed by it under the Securities Act and
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations adopted
by the SEC thereunder; provided, however, that if
the Company ceases to be so required to file such reports,
21
it will,
upon the request of any Holder of Registrable Notes, (a) make publicly available
such information as is necessary to permit sales of its securities pursuant to
Rule 144 under the Securities Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales of its securities pursuant to Rule
144A under the Securities Act, and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such rule may be amended from time to
time, (ii) Rule 144A under the Securities Act, as such rule may be amended from
time to time, or (iii) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Notes, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements.
The
Company has not entered into, nor will the Company on or after the date of this
Agreement enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof without the written consent of Holders of a
majority in aggregate principal amount of the outstanding Registrable
Notes. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company’s other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective as against any Holder
of Registrable Notes unless consented to in writing by such Holder of
Registrable Notes. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Notes, by written agreement signed by the Company and the Initial Purchasers, to
cure any ambiguity, correct or supplement any provision of this Agreement that
may be inconsistent with any other provision of this Agreement or to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchasers to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law and regulation (including any interpretation of the staff of the SEC) or any
change therein and (iii) to the extent any provision of this Agreement relates
to an Initial Purchaser, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions may be
given, by written agreement signed by such Initial Purchaser and the
Company.
(d) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address
22
given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect
to the Initial Purchasers:
c/o
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Barclays
Capital Inc.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Fixed Income Syndicate Desk
BNP
Paribas Securities Corp.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Syndicate Desk
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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and
(ii) if to the Company, initially at the Company c/o Ameren
Corporation:
X.X. Xxx 00000
Xx. Xxxxx, Xxxxxxxx
00000-0000
Attention: Treasurer
and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such
notices and communications shall be deemed to have been duly given at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of
all such notices, demands, or other communications shall be concurrently
delivered by the Person giving the same to the Trustee, at the address specified
in the Indenture.
(e) Successors and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of the Initial Purchasers, including, without limitation
and without the need for an express assignment, subsequent Holders; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Notes in any manner, whether by operation of law or
otherwise, such Registrable Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Notes, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
23
(f) Third Party Beneficiaries.
Each
Holder and any Participating Broker-Dealer shall be third party beneficiaries of
the agreements made hereunder among the Initial Purchasers and the Company, and
the Initial Purchasers shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW.
THIS
AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW
YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Notes Held by the Company or its
Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company or its
Affiliates shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(l) Entire Agreement.
This
Agreement embodies the entire agreement and understanding between the Company
and each of the Initial Purchaser relating to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties hereto with respect to this subject matter.
[continued
on next page]
24
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Illinois
Power Company
d/b/a
AmerenIP
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||
By:
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/s/
Xxxxx X. Xxxxxxxx
|
|
Name: Xxxxx
X. Xxxxxxxx
Title:
Vice President and Treasurer
|
Confirmed
and accepted as of
the date
first above written:
Barclays
Capital Inc.
BNP
Paribas Securities Corp.
Xxxxxx
Brothers Inc.
By:
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Barclays
Capital Inc.
For
itself and as representative of the
several
Initial Purchasers
|
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/s/
Xxxxxx Xxxxxxx
|
||
Name:
Xxxxxx Xxxxxxx
Title:
Director
|
||
By:
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BNP
Paribas Securities Corp.
For
itself and as representative of the
several
Initial Purchasers
|
|
By:
|
/s/
Xxxx X. Xxxxx
|
|
Name:
Xxxx X. Xxxxx
Title: Managing
Director
|
||
By:
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Xxxxxx
Brothers Inc.
For
itself and as representative of the
several
Initial Purchasers
|
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By:
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/s/
Xxxxxx Xxxxxxxx
|
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Name:
Xxxxxx Xxxxxxxx
Title:
Senior Vice President
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Signature
Page to IP RRA