Exhibit 4.8
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REGISTRATION RIGHTS AGREEMENT
Dated October 9, 2001
among
MIRANT AMERICAS
GENERATION, INC.
and
SALOMON SMITH BARNEY INC.
and
BANC OF AMERICA SECURITIES LLC
and
BLAYLOCK & PARTNERS, L.P.
and
SCOTIA CAPITAL (USA) INC.
and
TD SECURITIES (USA) INC.
and
TOKYO-MITSUBISHI INTERNATIONAL plc
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of October 9, 2001 among MIRANT AMERICAS GENERATION, INC., a Delaware
corporation (the "Company") and SALOMON SMITH BARNEY INC. ("Salomon Smith
Barney"), BANC OF AMERICA SECURITIES LLC, BLAYLOCK & PARTNERS, L.P., SCOTIA
CAPITAL (USA) INC., TD SECURITIES (USA) INC. and TOKYO-MITSUBISHI INTERNATIONAL
plc (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
October 3, 2001 (the "Purchase Agreement"), among the Company, as issuer of the
7.20% Senior Notes due 2008, and the 8.50% Senior Notes due 2021 (collectively,
the "Notes"), and the Initial Purchasers, which provides for among other things,
the sale by the Company to the Initial Purchasers of an aggregate of
$750,000,000 of the Notes. 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
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defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(d)
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hereof.
"Additional Interest Event" shall have the meaning set forth in
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Section 2(d) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
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Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
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hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
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(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
Corporate Trust Office is closed for business.
"Closing Time" shall mean the Closing Time as defined in the Purchase
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Agreement.
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"Depositary" shall mean The Depository Trust Company, or any other
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depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
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2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"Exchange Notes" shall mean the 7.20% Senior Notes due 2008 and the
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8.50% Senior Notes due 2021, containing terms identical to the Notes (except
that they will not contain terms with respect to transfer restrictions under the
Securities Act and will not provide for any increase in the interest rate
thereon).
"Exchange Offer" shall mean the offer by the Company to the Holders to
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exchange all of the Registrable Notes for a like principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
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Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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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 material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
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hereof.
"Holder" shall mean the Initial Purchasers, for so long as they own
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any Registrable Notes, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Notes under the Indenture; provided that for purposes of Sections 3 and 4 of
this Agreement, the term Holder shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Notes and the
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Exchange Notes dated as of May 1, 2001 between the Company and Bankers Trust
Company, as the Trustee, as the same may be amended from time to time in
accordance with the terms thereof, together with any series supplemental
indenture relating thereto.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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"Issue Date" shall mean the date of original issuance of the Notes.
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"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the Preamble.
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"Participating Broker-Dealer" shall have the meaning set forth in
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Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
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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 material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
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to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
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"Registrable Notes" shall mean the Notes; provided, however, that the
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Notes shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes for the exchange thereof, shall have been declared
effective under the Securities Act and such Notes shall have been disposed of
pursuant to such Registration Statement, (ii) such Notes shall have been sold to
the public pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule l44A) under the Securities Act, (iii) such Notes shall have ceased to
be outstanding or (iv) such Notes have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradable by the
holder thereof (other than an affiliate of the Company).
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees; (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange Notes
or Registrable Notes) and compliance with the rules of the NASD in the amount
not exceeding $15,000 in the aggregate; (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 Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or
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assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement; (iv) all rating agency fees; (v) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "comfort"
letters required by or incident to such performance and compliance; (vi) the
fees and expenses of the Trustee, and any paying agent, exchange agent or
custodian, (vii) all fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Notes on any securities exchange or exchanges;
and (viii) the reasonable fees and expenses of any experts retained by the
Company in connection with the Registration Statement.
"Registration Statement" shall mean any registration statement of the
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Company that covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
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shorter period as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended
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from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
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2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Company pursuant to the provisions of Section 2(b) hereof that
covers all of the Registrable Notes, 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 material incorporated by reference
therein.
"Special Counsel" shall have the meaning set forth in Section 3(n)
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hereof.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
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"Trustee" shall mean the Trustee with respect to the Notes under the
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Indenture,
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which shall initially be Bankers Trust Company, and any successor trustee
appointed pursuant to the provisions thereof.
2. Registration Under the Securities Act.
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(a) Exchange Offer. To the extent not prohibited by any applicable law
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or applicable interpretation of the staff of the SEC, the Company shall,
for the benefit of the Holders, at the Company's cost, use its reasonable
best efforts to (i) cause to be filed with the SEC an Exchange Offer
Registration Statement on an appropriate form under the Securities Act
covering the Exchange Offer, (ii) cause such Exchange Offer Registration
Statement to be declared effective under the Securities Act by the SEC not
later than the date that is 240 days after the Issue Date, and (iii) keep
such Exchange Offer Registration Statement effective for not less than 30
calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Notes for a like principal amount of Exchange Notes (assuming
that such Holder is not an affiliate of the Company within the meaning of
Rule 405 under the Securities Act and is not a broker-dealer tendering
Registrable Notes acquired directly from the Company for its own account,
acquires the Exchange Notes in the ordinary course of such Holder's
business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing the
Exchange Notes, and is not prohibited by any law or policy of the SEC from
participating in the Exchange Offer) to transfer such Exchange Notes from
and after their receipt without any limitations or restrictions under the
Securities Act and under state securities or blue sky laws.
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) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law) (such period referred to herein
as the "Exchange Period");
(iii) utilize the services of the Trustee or the Depositary for the
Exchange Offer,
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Notes delivered for
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exchange and a statement that such Holder is withdrawing his election to
have such Notes exchanged;
(v) notify each Holder that any Notes 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
(vi) otherwise comply with applicable laws relating to the Exchange
Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered
and not withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Notes equal in principal amount to the
principal amount of the Notes as are surrendered by such Holder for
exchange.
The Indenture will provide that the Exchange Notes will not be subject
to the restrictive legend set forth on the Registrable Notes or the transfer
restrictions (other than in respect of minimum denominations) set forth in the
Indenture.
Interest on each Exchange Note issued pursuant to the Registered
Exchange Offer will accrue from the last date on which interest was paid on the
Note surrendered in exchange therefor or, if no interest has been paid on such
Note, from the Issue Date.
To the extent not prohibited by any law or applicable interpretation
or other action 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 in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that the Exchange Offer shall
not violate applicable law or any applicable interpretation of the staff of the
SEC and as provided in the next sentence. Each Holder participating in the
Exchange Offer will be required to represent to the Company at the time of the
consummation of the Exchange Offer:
(a) that any Exchange Note received by that Holder will be acquired in
the ordinary course of business;
(b) that the Holder will have no arrangement or understanding with any
person to participate in the distribution of the Notes or the Exchange
Notes within the meaning of the Securities Act;
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(c) that the Holder is not an "affiliate," as defined in Rule 405 of
the Securities Act, of the Company or, if it is an affiliate, that Holder
will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable;
(d) if that Holder is not a broker-dealer, that it is not engaged in,
and does not intend to engage in any distribution of the Exchange Notes;
and
(e) if that Holder is a broker-dealer, that it will receive Exchange
Notes for its own account in exchange for Notes that were acquired as a
result of market-making activities or other trading activities and that it
will deliver a prospectus in connection with any resale of those Exchange
Notes.
Each Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes to be acquired in the Exchange Offer (1)
could not under SEC policy as in effect on the date of this Agreement rely on
the position of the SEC enunciated in Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
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mutandis, solely with respect to Registrable Notes that are Exchange Notes held
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by Participating Broker-Dealers, and the Company shall have no further
obligation to register the Registrable Notes (other than pursuant to Section
2(b)(iv)) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company is not
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permitted to effect the Exchange Offer because of any change in law or in
currently prevailing interpretations of the staff of the SEC, or (ii) any Notes
validly tendered pursuant to the Exchange Offer are not exchanged for
corresponding Exchange Notes upon consummation of the Exchange Offer, or (iii)
any Initial Purchaser so requests with respect to Notes not eligible to be
exchanged for Exchange Notes in the Exchange Offer and held by it following the
consummation of the Exchange Offer, or (iv) any applicable law or
interpretations do not permit and Holder of Notes other than the Initial
Purchaser to participate in the Exchange Offer, or (v) any Holder of Notes that
participates in the Exchange Offer does not receive freely transferable Exchange
Notes in exchange for tendered Notes, or (vi) the Company elects (any of the
events specified in (i) - (vi) being a "Shelf Registration Event" and the date
of occurrence thereof, the "Shelf Registration Event Date"), the Company shall
promptly deliver to the Holders written notice thereof and, at its cost, use its
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reasonable best efforts to cause to be filed as promptly as practicable after
such Shelf Registration Event Date, as the case may be, and, in any event,
within 45 days after such Shelf Registration Event Date (which shall be no
earlier than 75 days after the Closing Time), a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Notes, and shall
use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable; provided, however, that if
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the Shelf Registration Event is pursuant to clause (iii), the Company may
register such Registrable Notes together with the Exchange Offer Registration
Statement, filed pursuant to Section 2(a), and the requirements as to timing
applicable thereto. 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 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
requests for inclusion in any Shelf Registration Statement or Prospectus
included therein. Each Holder as to which any Shelf Registration is being
effected agrees promptly to furnish to the Company 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 for the Rule 144(k) Period
(subject to extension pursuant to the last paragraph of Section 3 hereof) or for
such shorter period that will terminate when all of the Registrable Notes
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding (the "Effectiveness Period").
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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 a
reasonable number of copies of the Prospectus that is a part of the Shelf
Registration Statement and notify each such Holder when the Shelf Registration
has become effective. The Company further agrees, if necessary, 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 Securities 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
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connection with the registration pursuant to Section 2(a) or 2(b) hereof. Each
Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
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Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof (or a combination of the two) will not be deemed
to have become effective unless it
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has been declared effective by the SEC; provided, however, that if, after it has
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been declared effective, the offering of Registrable Notes pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have 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 in the 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.
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(e) Additional Interest. The annual interest rates on the principal
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amount of the Notes shall increase by 0.50% per annum (the "Additional
Interest") if any of the following events occur (each event identified in clause
(i), (ii) or (iii) below, an "Additional Interest Event"):
(i) if the Exchange Offer is not consummated or the Shelf Registration
Statement does not become effective within 270 days following the Closing
Date, Additional Interest shall accrue on the Notes from and after that
date to, but excluding, the date the Exchange Offer is consummated, the
date the Shelf Registration Statement becomes effective, or the date on
which all the Notes otherwise become transferable by Holders (other than
the Company or its affiliates, as such term is refined in Rule 501 (b) of
Regulation D under the Securities Act) without further registration under
the Securities Act; or
(ii) if a Shelf Registration Statement is required to be filed with
the SEC and becomes effective and later ceases to be effective at any time
during the period specified by this Agreement, Additional Interest shall
accrue on the Notes from and after the date such registration statement
ceases to be effective to, but excluding, such date when the Shelf
Registration Statement again becomes effective (or, if earlier, the end of
such period specified by this Agreement); or
(iii) if the Company ceases to maintain its status as a reporting
company under the Exchange Act whether or not SEC rules and regulations
require the Company to maintain that status (unless the SEC will not accept
the filing of the applicable reports) Additional Interest shall accrue on
the Notes.
provided, however, that the Additional Interest rate on the Notes may not exceed
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in the aggregate 0.5% per annum; provided, further, however that Additional
Interest shall cease to accrue on the Notes as of the date all Additional
Interest Events are cured and cease to exist. Any amount of Additional Interest
due pursuant to Section 2(e) (i), (ii) or (iii) above will be payable in cash on
the relevant payment dates for the payment of interest pursuant to the
Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
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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
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Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its best reasonable efforts to:
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(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(s) under the Securities Act, which form(s) (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Notes by the selling Holders
thereof and (iii) shall 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 in accordance with Section 2 hereof; provided, however, that if
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(1) such filing is pursuant to Section 2(b) or (2) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant to Section 2(a)
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer, as the case
may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed. 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 or such Participating Broker-Dealer, as the case may
be, their counsel or the managing underwriters, if any, shall reasonably
object;
(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 securities 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 a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement
with respect to the Registrable Notes is being filed and advise such Holder
that the distribution of Registrable Notes will be made in accordance with
the method selected by the Majority Holders; (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, as
many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement
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thereto and such other documents as such Holder or underwriter may
reasonably request, in each case without charge 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.
(d) in the case of a Shelf Registration, cooperate with the Trustee to
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;
provided, however, that in complying with the requirements of this Section
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3(d) 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(d), (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) file
annual reports or comply with any other requirements deemed by the Company
to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or (2) Participating
Broker-Dealers from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Notes, or such Participating
Broker-Dealers, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (i) when
a Registration Statement has become effective and when any post-effective
amendments and supplements 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 paragraph 3(d)
hereof, (iv) of the happening of any event or the failure of any event to
occur or the discovery of any fact or otherwise, during the Effectiveness
Period that makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or that causes such
Registration Statement or Prospectus to 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 (v) the Company's
reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
13
(g) 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);
(h) 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 and in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the
selling Holders or the underwriters may reasonably request prior to the
closing of any sale of Registrable Notes pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to a 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 contain 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 to 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;
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document that is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies, without
charge, of such document to the Holders; and make such of the
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Notes or the Initial Purchasers on behalf of such
Holders available for reasonable discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes and the Notes, as the
case may be, not later than the effective date of a Registration Statement,
and provide the Trustee with printed certificates for the Exchange Notes or
the Registrable Notes, as the case may be, in a form eligible for deposit
with the Depositary;
(1) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA") in connection with the registration of the
Exchange Notes or Registrable Notes, as the case may be, and effect such
changes to such document as may be required for it 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
14
be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such document to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) consistent with the terms of the
Purchase Agreement and take all such other appropriate actions as are
reasonably requested in order to expedite or facilitate the registration or
the disposition of such Registrable Notes, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) any
Initial Purchaser, in the case where an Initial Purchaser holds Notes
acquired by it as part of its initial distribution and (y) other Holders of
Notes covered thereby: (i) make such representations and warranties to
Holders of such Registrable Notes and the underwriters (if any) consistent
with the terms of the Purchase Agreement and the registration requirements
of the Securities Act; (ii) obtain opinions of counsel to the Company and
updates thereof (which may be in the form of a reliance letter) consistent
with the terms of the Purchase Agreement and the registration requirements
of the Securities Act (it being agreed that the matters to be covered by
such opinion may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountant of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), 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 the Majority Holders of Registrable Notes covered
by such Registration Statement and the managing underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section
(including such underwriters and selling Holders). The above shall be done
at each closing under such underwriting agreement, or as and to the extent
required thereunder and as consistent with the terms of the Purchase
Agreement;
(n) 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 such Registrable Notes being sold, or
each such Participating Broker-Dealer, as the case may be, 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 or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, financial and other
15
records and pertinent corporate documents of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply any relevant information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement; provided, further, that the foregoing inspection and information
-------- -------
gathering shall be coordinated on behalf of the Initial Purchasers by you
and on behalf of the other parties, by one counsel designated by you and on
behalf of such other parties as described in Section 2(c) hereof; provided,
--------
however, that such counsel shall be Shearman & Sterling, or such other
-------
counsel as is reasonably acceptable to the Company (the "Special Counsel").
Records that the Company determines in good faith, to be confidential and
any Records that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to agree in
writing that 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. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to agree in writing that 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. 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 is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company at
its expense to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with applicable rules and regulations of the SEC so long as
this Agreement shall be applicable and make generally available to its
security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes participating
in the Exchange Offer that includes an opinion that (i) the Company has
duly authorized, executed and delivered the Exchange Notes and (ii) each of
the Exchange Notes constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms (in
each case, with customary exceptions);
16
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Notes, the Company
shall mark, or cause to be marked, on such Registrable Notes delivered by
such Holders that such Registrable Notes are being canceled in exchange for
the Exchange Notes and in no event shall such Registrable Notes be marked
as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD;
(s) use its reasonable best efforts to take all other steps necessary
to effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
indicate in a "Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that any broker or
dealer registered under the Exchange Act who holds Notes that are
Registrable Notes and that were acquired for its own account as a result of
market-making activities or other trading activities (other than
Registrable Notes acquired directly from the Company) (such broker or
dealer, a "Participating Broker-Dealer"), may exchange such Notes pursuant
to the Exchange Offer; however, such Participating Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and
must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Notes
received by such Participating Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Participating Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall
also contain all other information with respect to such resales by
Participating Broker-Dealers that the SEC may require in order to permit
such resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Participating Broker-Dealer or disclose the amount of
Exchange Notes held by any such Participating Broker-Dealer except to the
extent required by the SEC as a result of a change in policy announced
after the date of this Agreement, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in
Section 3(e), without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) 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 regulations in
17
order to resell the Exchange Notes; provided, however, that such period
-------- -------
shall not be required to exceed 90 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period"), and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
acquired for its own account as a result of market-making activities
or other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Registrable Notes pursuant
to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the 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 requested by any
such Initial Purchasers or such other representative of the 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 the Initial Purchasers or such other
representative of the Participating Broker-Dealers, consistent with the
opinion delivered pursuant to the Purchase Agreement (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 containing
certifications substantially similar to those set forth in Section 4(b) of
the Purchase Agreement and (iii) as well as upon the effectiveness of the
Exchange Offer Registration Statement, a comfort letter, in each case, in
customary form if permitted by Statement on Auditing Standards No. 72.
Each of the foregoing shall be consistent with the terms of the
Purchase Agreement.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within 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.
18
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
Section 3(t) hereof, 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 happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(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(i) hereof or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company all copies 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 Exchange Notes, as the case may
be, pursuant to a Registration Statement, the Company shall use its best efforts
to file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
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.
---------------
(a) In connection with any Registration Statement, the Company agrees
to indemnify and hold harmless each of the Initial Purchasers, each Holder,
each underwriter who participates in an offering of the Registrable Notes,
each Participating Broker-Dealer, and each Person, if any, who controls any
of such parties within the meaning of Section 15 of the Securities Act
(each a "Company Indemnified Party") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or otherwise, and to reimburse the
Company Indemnified Party for any legal or other expenses incurred by them
in connection with defending any actions, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus or the Prospectus as amended or supplemented, or arise out of or
are based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or
omission or alleged untrue statement or omission that was made in such
Prospectus, or the Prospectus as amended or supplemented, in reliance upon
and in conformity with information furnished in writing to the Company by
such Company Indemnified Party (or, if such Company Indemnified Party is an
Initial Purchaser, through the Representative of the Initial Purchasers on
behalf of such Initial Purchaser) for use therein and except that this
indemnity with respect to the Prospectus shall not inure to the benefit of
any Company Indemnified Party on account of any losses, claims, damages,
19
liabilities or actions arising from the sale of Registrable Notes to any
person if a copy of the Prospectus, as the same may then be amended or
supplemented, shall not have been sent or given by or on behalf of such
Company Indemnified Party to such person with or prior to the written
confirmation of the sale involved and if the Prospectus (as so amended or
supplemented) would have corrected the defect giving rise to such loss,
liability, claim or damage.
(b) Promptly after receipt by any Company Indemnified Party under
Section 4(a) of written notice of any loss, claim, damage or liability in
respect of which indemnity may be sought by it hereunder, such Company
Indemnified Party will, if a claim is to be made against the Company,
notify the Company thereof in writing, but the omission so to notify the
Company will not relieve the Company from any liability (otherwise than
under Section 4(a) above) that it may have to the Company Indemnified
Party. Thereafter, the Company Indemnified Party and the Company shall
consult, to the extent appropriate, with a view to minimizing the cost of
the Company of its obligations hereunder. In case any Company Indemnified
Party receives written notice of any loss, claim, damage or liability in
respect of which indemnity may be sought by it hereunder and it notifies
the Company thereof, the Company will be entitled to participate therein,
and to the extent that it may elect by written notice delivered to the
Company Indemnified Party promptly after receiving the aforesaid notice
from the Company Indemnified Party, to assume the defense thereof with
counsel reasonably satisfactory to the Company Indemnified Party; provided,
--------
however, that if the parties against which any loss, claim, damage or
-------
liability arises include both the Company Indemnified Party and the Company
and the Company Indemnified Party shall have reasonably concluded that
defenses available to it create a conflict of interest for the counsel
selected by the Company Indemnifying party under the code of professional
responsibility applicable to such counsel, the Company Indemnified Party
shall have the right to select one separate counsel to assume such legal
defenses and otherwise to participate in the defenses of such loss, claim,
damage or liability on behalf of the Company Indemnified Party. Upon
receipt by the Company Indemnified Party of notice from the Company of its
selection so to assume the defense of such loss, claim, damage or liability
and approval by the Company Indemnified Party of counsel, the Company shall
not be liable to the Company Indemnified Party under Section 4(a) above for
any legal or other expenses subsequently incurred by the Company
Indemnified Party in connection with the defense thereof unless (i) the
Company Indemnified Party shall have employed such counsel in connection
with the assumption of legal defenses in accordance with the proviso to the
next preceding sentence, (ii) the Company shall not have employed and
continued to employ counsel reasonably satisfactory to the Company
Indemnified Party to represent the Company Indemnified Party within a
reasonable time after notice of commencement of the action or (iii) the
Company shall have authorized in writing the employment of separate counsel
for the Company Indemnified Party at the expense of the Company. The
Company shall not, without prior written consent of the Company Indemnified
Party, effect any settlement of any pending or threatened action in respect
of which the Company Indemnified Party is or is entitled or subject to be a
party and the Company Indemnified Party is entitled to indemnity hereunder
unless such settlement includes an unconditional release of the Company
Indemnified Party from all liability on any claims that are the subject
matter of such action. The Company shall not
20
be liable for any settlement, compromise or consent to the entry of any
order adjudicating or otherwise disposing of any loss, claim, damage or
liability effected without its consent.
The Company's indemnity agreement contained in this Section 4 shall
remain in full force and effect regardless of any investigation made by or
on behalf of any Initial Purchaser or any controlling person, and shall
survive the Exchange Offer Registration.
(c) In connection with any Registration Statement, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, any
underwriter and the other selling Holders and each of their respective
directors, officers (including each officer of the Company who signed the
Registration Statement), employees and agents and each Person, if any, who
controls the Company, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act (each a "Holder Indemnified
Party"), against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Securities Act or otherwise, and to reimburse the Holder Indemnified Party
for any legal or other expenses incurred by them in connection with
defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus or the
Prospectus as amended or supplemented, or arise out of or are based upon
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading, insofar as
such losses, claims, damages, liabilities or actions arise out of or are
based upon any such untrue statement or omission or alleged untrue
statement or omission that was made in such Prospectus, or the Prospectus
as amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by such Holder Indemnified
Party (or, if such indemnifying Holder is an Initial Purchaser, through the
Representative of the Initial Purchasers on behalf of such indemnifying
Holder) for use therein; provided, 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.
Each Holder's indemnity agreement contained in this Section 4 shall
remain in full force and effect regardless of any investigation made by or
on behalf of any the Company or any other Holder or any controlling person,
and shall survive the Exchange Offer Registration.
5. Participation in Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis provided in any
underwriting arrangements 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.
21
6. Selection of Underwriters. The Holders of Registrable Notes covered
-------------------------
by the Shelf Registration Statement who desire to do so may sell the securities
covered by such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering may 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
-------- -------
satisfactory to the Company.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule l44A. 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 use its reasonable
best efforts to 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, that if it ceases to be so
required to file such reports, it will, upon the request of any Holder of
Registrable Notes (a) make publicly available such information as is
necessary to permit sales of their securities pursuant to Rule 144 under
the Securities Act, (b) deliver such information to a prospective purchaser
as is necessary to permit sales of their securities pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder
of Registrable Notes may reasonably request 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 l44A 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 that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. 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 at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure. 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 Salomon
Smith Barney, to cure
22
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 that 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 Salomon Smith Barney
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 (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 the Initial Purchasers, 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 Salomon
Smith Barney and the Company.
(d) Notices. All Notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Notes, at the most current address given by
such Holder to the Company.
(2) if to the Initial Purchasers:
Salomon Smith Barney Inc.
388 Greenwich Street
34th Floor
New York, NY 10013
Attention: Dean Keller
Fax No.: (212) 816-0901
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Fax No.: (212) 848-7179
Attention: John A. Millard, Esq.
(3) if to the Company, at its address as follows:
Mirant Americas Generation, Inc.
1155 Perimeter Center West
Atlanta, Georgia 30338
Fax No.: (678) 579-5001
Attention: President
23
with a copy to:
Troutman Sanders LLP
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Fax No.: (404) 885-3001
Attention: John T. W. Mercer, Esq.
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 receipt is acknowledged by recipient's facsimile machine
operator 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.
(d) 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 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.
(e) Third Party Beneficiary. Each of the Holders shall be a third
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party beneficiary of the agreements made hereunder between the Company on
the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
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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.
(g) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
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(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. In the event that any one or more of the provisions
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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.
(j) Securities Held by the Company or its Affiliates. Whenever the
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consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MIRANT AMERICAS
GENERATION, INC.
By:
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Name: Donald B. Dysert
Title: Vice President and Treasurer
Confirmed and accepted as of
the date first above written:
Salomon Smith Barney Inc.
Banc of America Securities LLC
Blaylock & Partners, L.P.
Scotia Capital (USA) Inc.
TD Securities (USA) Inc.
Tokyo-Mitsubishi International plc
SALOMON SMITH BARNEY INC.
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as Representative of the
Several Initial Purchasers
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