Exhibit 4.9


 


 






 


 


Registration Rights Agreement


 


Dated As of October 15, 2007


 


among


 


THE AES CORPORATION


 


and


 


Deutsche Bank Securities Inc.,


 


Credit Suisse Securities (USA) LLC


 


and


 


Merrill Lynch, Pierce, Fenner & Smith


Incorporated


 

















 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (the “Agreement”)
is made and entered into this 15th day of October, 2007 among The
AES Corporation, a Delaware corporation (the “Company”) and Deutsche Bank Securities Inc., Credit Suisse
Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(collectively, the “Initial Purchasers”).


 


This Agreement is made pursuant to the
Purchase Agreement, dated October 9, 2007, among the Company and the Initial
Purchasers (the “Purchase Agreement”), which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $500,000,000 principal amount of the Company’s 7.75% Senior Notes Due
2015 and an aggregate of $1,500,000,000 principal amount of the Company’s 8.00%
Senior Notes Due 2017 (collectively, the “Securities”). 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
of this Agreement is a condition to the closing under the Purchase Agreement.


 


In consideration of the foregoing, the
parties hereto agree as follows:


 


1.             Definitions.


 


As used in this Agreement, the following
capitalized defined terms shall have the following meanings:


 


“1933 Act” shall mean the
Securities Act of 1933, as amended from time to time.


 


“1934 Act” shall mean the
Securities Exchange Act of l934, as amended from time to time.


 


“Additional Interest” shall have the meaning
set forth in Section 2.5.


 


“Business Day” shall mean any day
except (i) a Saturday, Sunday or other day in The City of New York on
which banks are required or authorized to close or (ii) any other day on
which the SEC is closed.


 


“Closing Date” shall mean the
Closing Date as defined in the Purchase Agreement.


 


“Company” shall have the meaning set
forth in the preamble and shall also include the Company’s successors.


 


“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, in the City
of New York.


 


“Effectiveness Period” shall have the
meaning set forth in Section 2.2(b) herein.


 

















 


“Exchange Offer” shall mean the offer
by the Company to exchange the Exchange Securities for Registrable Securities
pursuant to Section 2.1 hereof.


 


“Exchange Offer Registration”
shall mean a registration under the 1933 Act effected pursuant to Section 2.1
hereof.


 


“Exchange Offer Registration Statement”
shall mean an exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.


 


“Exchange Period” shall have the
meaning set forth in Section 2.1 hereof.


 


“Exchange Securities” shall mean
the 7.75% Senior Notes Due 2015 or the 8.00%
Senior Notes due 2017, as the case may be, issued by the Company under the
Indenture containing terms identical to the Securities in all material respects
(except that the additional interest rate, restrictions on transfers and
restrictive legends shall be eliminated), to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.


 


“Holder” shall mean an Initial
Purchaser, for so long as it owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such Participating
Broker-Dealer is required to deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities.


 


“Indenture” shall mean the Indenture
relating to the Securities, dated as of December 8, 1998, between the
Company and Wells Fargo Bank Minnesota, N.A., as successor to Bank One National
Association (formerly known as The First National Bank of Chicago), as trustee,
as the same has been or may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.


 


“Initial Purchaser” “or “Initial
Purchasers” shall have the meaning set forth in the preamble.


 


“Issuer FWP” shall have the meaning
set forth in Section 4(a)(i).


 


“Majority Holders” shall mean the
Holders of a majority of the aggregate principal amount of outstanding Registrable
Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or any Affiliate (as
defined in the Indenture) of the Company shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage amount.


 


“Participating Broker-Dealer”
shall mean Deutsche Bank Securities
Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner
& Smith Incorporated and any


 


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other broker-dealer which makes a market in
the Securities and exchanges Registrable Securities in the Exchange Offer for
Exchange Securities.


 


“Person” shall mean an individual, partnership
(general or limited), corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.


 


“Private Exchange” shall have the
meaning set forth in Section 2.1 hereof.


 


“Private Exchange Securities” shall
have the meaning set forth in Section 2.1 hereof.


 


“Prospectus” shall mean the prospectus
included in a Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus supplement,
including any such prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities 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
materials incorporated by reference therein.


 


“Purchase Agreement” shall have
the meaning set forth in the preamble.


 


“Registrable Securities” shall
mean the Securities and, if issued, the Private Exchange Securities; provided, however, that
Securities and, if issued, the Private Exchange Securities, shall cease to be
Registrable Securities (i) when a Registration Statement with respect to
such Securities or Private Exchange Securities shall have become or been
declared effective under the 1933 Act and such Securities or Private Exchange
Securities shall have been disposed of pursuant to such Registration Statement,
(ii) when such Securities or Private Exchange Securities have been sold to the
public pursuant to Rule l44 (or any similar provision then in force, but not
Rule 144(A)) under the 1933 Act, (iii) when such Securities or Private
Exchange Securities shall have ceased to be outstanding, (iv) when the
Exchange Offer is consummated (except in the case of Securities and Private Exchange
Securities purchased from the Company and continued to be held by the Initial Purchasers)
or (v) upon the date when such Securities or Private Exchange Securities
may be sold pursuant to Rule 144(k) under the 1933 Act (or any source or
provision then in force).


 


“Registration Default” shall have the
meaning set forth in Section 2.5.


 


“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 registration and filing fees,
(ii) all fees and expenses incurred by the Company in connection with
compliance with state securities or blue sky laws in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities and
any filings with the National Association of Securities Dealers, Inc. (the “NASD”),
(iii) all expenses of the Company in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, and other documents relating
to the performance of and compliance with this Agreement, (iv) all rating
agency fees, incurred by the Company, if any, (v) the reasonable and
documented fees and disbursements of


 


3

















 


counsel for the Company and of the
independent registered public accounting firm of the Company, including the
expenses of any special audits required by or incident to such performance and
compliance, (vi) the reasonable and documented fees and expenses of the
Trustee, and any escrow agent or custodian, (vii) the reasonable and
documented fees and disbursements of one firm special counsel representing the
Holders of Registrable Securities and (viii) the reasonable and documented
fees and expenses of any special experts retained by the Company in connection
with any Registration Statement, but excluding any transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.


 


“Registration Statement” shall
mean any registration statement of the Company which covers any of the Exchange
Securities or Registrable Securities 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 materials incorporated
by reference therein.


 


“SEC” shall mean the Securities and
Exchange Commission or any successor agency or government body performing the
functions currently performed by the United States Securities and Exchange
Commission.


 


“Securities” shall have the meaning
set forth in the preamble.


 


“Shelf Registration” shall mean a
registration effected pursuant to Section 2.2 hereof.


 


“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company pursuant to the provisions
of Section 2.2 of this Agreement which covers all of the Registrable Securities
or all of the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.


 


“Suspension Period” shall have the
meaning set forth in Section 2.2 hereof.


 


“Trustee” shall mean the trustee with
respect to the Securities under the Indenture.


 


2.             Registration Under the 1933 Act.


 


2.1           Exchange Offer. The
Company shall, for the benefit of the Holders, at the Company’s cost use its
commercially reasonable efforts to, (A) prepare and file with the SEC not
later than September 30, 2008, an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer
and the issuance and delivery to the Holders, in exchange for the Registrable
Securities (other than Private Exchange Securities), of a like principal amount
of Exchange Securities, (B) cause the Exchange Offer Registration Statement to become
or be declared effective under the 1933 Act by December 31, 2008, (C) keep
the Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (D) cause the Exchange Offer to be consummated by December
31, 2008. The Exchange


 


4

















 


Securities will be issued under the Indenture. 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 Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of
the Company within the meaning of Rule 405 under the 1933 Act, (b) is not
a broker-dealer tendering Registrable Securities acquired directly from the Company
for its own account, (c) acquired the Exchange Securities in the ordinary
course of such Holder’s business and (d) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange Securities
from and after their receipt without any limitations or restrictions under the
1933 Act and under state securities or blue sky laws.


 


In connection with the Exchange Offer, the
Company shall:


 


(a)           mail as promptly as
practicable after the commencement of the Exchange Offer to each Holder a copy
of the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;


 


(b)           keep the Exchange
Offer open for acceptance for a period of not less than 20 Business Days
after the date notice thereof is mailed to the Holders (or longer if required
by applicable law) (such period referred to herein as the “Exchange Period”);


 


(c)           utilize the services
of the Depositary for the Exchange Offer;


 


(d)           permit Holders to
withdraw tendered Registrable Securities at any time prior to the expiration of
the Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing such Holder’s
election to have such Securities exchanged;


 


(e)           notify each Holder
that any Registrable Security not tendered will remain outstanding and continue
to accrue interest, but will not retain any rights under this Agreement (except
in the case of the Initial Purchasers and Participating Broker-Dealers as provided
herein); and


 


(f)            otherwise comply in
all material respects with all applicable laws relating to the Exchange Offer.


 


If, prior to consummation of the Exchange
Offer, the Initial Purchasers hold any Securities acquired by them and having
the status of an unsold allotment in the initial distribution, the Company upon
the request of any Initial Purchaser shall, simultaneously with the delivery of
the Exchange Securities in the Exchange Offer, issue and deliver to such
Initial Purchaser in exchange (the “Private Exchange”) for the Securities held
by such Initial Purchaser, a like principal amount of debt securities of the
Company on a senior basis, that are identical (except


 


5

















 


that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities (the “Private Exchange
Securities”).


 


The Exchange Securities and the Private
Exchange Securities shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and
which, in either case, has been qualified under the Trust Indenture Act of
1939, as amended (the “TIA”), or is exempt from such qualification and shall
provide that the Exchange Securities shall not be subject to the transfer
restrictions set forth in the Indenture but that the Private Exchange
Securities shall be subject to such transfer restrictions. The Indenture or
such indenture shall provide that the Exchange Securities, the Private Exchange
Securities and the Securities shall vote and consent together on all matters as
one class of securities under the Indenture and that none of the Exchange
Securities, the Private Exchange Securities or the Securities will have the
right to vote or consent as a separate class on any matter under the Indenture.
If the customary procedures of the Depositary and the CUSIP Bureau allow, the
Private Exchange Securities shall be of the same series as and the Company
shall use all commercially reasonable efforts to have the Private Exchange
Securities bear the same CUSIP number as the Exchange Securities. The Company
shall not have any liability under this Agreement solely as a result of such
Private Exchange Securities not bearing the same CUSIP number as the Exchange
Securities.


 


As soon as practicable after the close of the
Exchange Offer and/or the Private Exchange, as the case may be, the Company
shall:


 


(i)            accept for exchange
all Registrable Securities duly tendered and not validly withdrawn pursuant to
the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which shall be an exhibit
thereto;


 


(ii)           accept for exchange
all Securities properly tendered pursuant to the Private Exchange;


 


(iii)          deliver to the
Trustee for cancellation all Registrable Securities so accepted for exchange;
and


 


(iv)          cause the Trustee
promptly to authenticate and deliver Exchange Securities or Private Exchange
Securities, as the case may be, to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal amount of
the Registrable Securities of such Holder so accepted for exchange.


 


Interest on each Exchange Security and
Private Exchange Security will accrue from the last date on which interest was
paid on the Registrable Securities surrendered in exchange therefor or, if no
interest has been paid on the Registrable Securities, from the date of original
issuance. The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than (i) that the Exchange Offer or the Private Exchange,
or the making of any exchange by a Holder, does not violate applicable law,
rule or regulation or any applicable interpretation of the staff of the SEC,
(ii) the due tendering of Registrable Securities in accordance with the
Exchange Offer and the Private Exchange, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have represented
that (A) it is not an affiliate (as defined in


 


6

















 


Rule 405 under the 1933 Act) of the Company
or, if it is such an affiliate, it will comply with the registration and
prospectus delivery requirements of the 1933 Act, to the extent applicable;
(B) all Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities, (C) if such Holder is not a broker-dealer, that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities, (D) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for the Securities
that were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities and (E) shall
have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or other appropriate form under the 1933 Act available and (iv) that
no action or proceeding shall have been instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer or
the Private Exchange which, in the Company’s judgment, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer or the Private Exchange. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange Offer.


 


2.2           Shelf Registration. (i)
If, because of any changes in law, SEC rules or regulations or applicable
interpretations thereof by the staff of the SEC, the Company is not permitted
to effect the Exchange Offer as contemplated by Section 2.1 hereof,
(ii) if for any other reason the Exchange Offer is not consummated by December
31, 2008, (iii) upon receipt of a request of any of the Initial Purchasers
that they are not permitted under the applicable law or interpretations of the
SEC to participate in the Exchange Offer or (iv) if and to the extent that a
Holder is not permitted to participate in the Exchange Offer or does not
receive fully tradeable Exchange Securities pursuant to the Exchange Offer,
then in case of each of clauses (i) through (iv) the Company shall, at its
cost:


 


(a)           As promptly as
practicable, file with the SEC, and thereafter shall use its commercially
reasonable efforts to cause to be declared or become effective as promptly as
practicable but no later than December 31, 2008, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth in such
Shelf Registration Statement.


 


(b)           Use its commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be usable
by Holders for (i) a period of two years from the Closing Date, or (ii) for
such shorter period that will terminate when all Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be Registrable
Securities (the “Effectiveness Period”).


 


7

















 


(c)           Notwithstanding any
other provisions hereof, use its commercially reasonable efforts to ensure that
(i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances under which they
were made, not misleading; provided that
clauses (ii) and (iii) of this paragraph shall not apply to any information
furnished in writing by or on behalf of the Initial Purchasers or any Holder
for inclusion therein.


 


Subject to the limitation set forth in the
next succeeding paragraph and subject to the provisions of Section 3, the Company
shall be entitled to suspend its obligation to file any amendment to the Shelf
Registration Statement, furnish any supplement or amendment to a Prospectus
included in the Shelf Registration Statement, make any other filing with the
SEC, cause the Shelf Registration Statement or other filing with the SEC to
remain effective or take any similar action (collectively, “Registration
Actions”) upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of proceedings
with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of
the 1933 Act, (B) the occurrence of any event or the existence of any fact
as a result of which the Shelf Registration Statement would or shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or the related Prospectus would or shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any corporate development that, in the discretion of
the Company, makes it appropriate to postpone or suspend the availability of
the Shelf Registration Statement and the related Prospectus, it being
understood that the Company may not invoke this Clause C for the purpose of
avoiding its obligations under this Agreement. Upon the occurrence of any of
the conditions described in (A), (B) or (C) above, the Company shall give
prompt notice (a “Suspension Notice”) thereof to the Holders. Upon the
termination of such condition, the Company shall give prompt notice thereof to
the Holders and shall promptly proceed with all Registration Actions that were
suspended pursuant to this paragraph and comply as promptly as practicable with
the requirements of Section 3(1) hereof, if applicable.


 


The Company may suspend Registration Actions
pursuant to the preceding paragraph for one or more periods (each, a “Suspension
Period”) not to exceed, in the aggregate, ninety days in any twelve month
period, during which no Additional Interest (as defined in Section 2.5) shall
be payable. If one or more Suspension Periods exceed 120 days in any twelve
month period, then Additional Interest will begin to accrue on the 121st
day until such Registration Default is cured. Each Suspension Period shall be
deemed to begin on the date the relevant Suspension Notice is given to the
Holders and shall end on the date on which the Company gives


 


8

















 


the Holders a notice that the Suspension
Period has terminated. The Company shall extend the Effectiveness Period (or
the period during which Participating Broker-Dealers are entitled to use the Prospectus
included in the Exchange Offer Registration Statement in connection with the
resale of the Exchange Securities described in Section 3(f) below) by the total
number of days during which a Suspension Period was in effect, so long as there
are Registrable Securities. Notwithstanding anything to the foregoing, the
Company shall at all times use its reasonable best efforts to end any
Suspension Period at the earliest possible time.


 


The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with
the SEC.


 


2.3           Expenses. The Company shall
pay all Registration Expenses in connection with the registration pursuant to
Section 2.1 or 2.2. Each Holder shall pay all transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to
the Shelf Registration Statement.


 


2.4           Effectiveness.


 


(a)           Other than with respect to a
Suspension Period, the Company will be deemed not to have used its commercially
reasonable efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company voluntarily takes any action that
would, or omits to take any action which omission would, result in any such
Registration Statement not becoming or being declared effective or in the Holders
of Registrable Securities covered thereby not being able to exchange or offer
and sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law, rule,
regulation, order, judgment or decree.


 


(b)           An Exchange Offer Registration
Statement pursuant to Section 2.1 hereof or a Shelf Registration Statement pursuant
to Section 2.2 hereof will not be deemed to have become effective unless either
it has been declared effective by the SEC or it automatically becomes effective
pursuant to the rules and regulations under the 1933 Act; provided,
however, that if, after it has become or
been declared effective, the offering of Registrable Securities pursuant to an
Exchange Offer Registration Statement or a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.


 


2.5           Interest. In the event that
either the Exchange Offer is not consummated or if obligated to file a Shelf Registration
Statement, such Shelf Registration Statement does not become or is not declared
effective, in either case, on or prior to December 31, 2008 (such event
referred to as a “Registration Default”), the interest rate borne by the
Securities shall be increased (“Additional Interest”) by one-quarter of one
percent per annum upon the occurrence of each Registration Default, which rate
will increase by one quarter of one percent each 90-day


 


9

















 


period that such Additional Interest continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the interest rate
will in no event exceed half of one percent (0.50%) per annum. Following the
cure of all Registration Defaults the accrual of Additional Interest will cease
and the interest rate will revert to the original rate.


 


Subject to the Company’s ability to declare
Suspension Periods, if the Shelf Registration Statement is unusable by the
Holders for any reason, and the aggregate number of days in any consecutive
twelve-month period for which the Shelf Registration Statement shall not be
usable exceeds 90 days in the aggregate, then the interest rate borne by the Registrable
Securities will be increased by 0.25% per annum of the principal amount of the Registrable
Securities for the first 90-day period (or portion thereof) beginning on the 91st
such date that such Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal
amount of the Registrable Securities at the beginning of each subsequent 90-day
period, provided that the maximum aggregate increase in the interest rate will
in no event exceed half of one percent (0.50%) per annum. Any amounts payable
under this paragraph shall also be deemed “Additional Interest” for purposes of
this Agreement. Upon the Shelf Registration Statement once again becoming
usable, the interest rate borne by the Registrable Securities will be reduced
to the original interest rate if the Company is otherwise in compliance with
this Agreement at such time.


 


Additional Interest shall be computed based
on the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable.


 


The Company shall notify the Trustee within five
business days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an “Event Date”). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable
semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date to the record Holder of Registrable
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event
Date.


 


3.             Registration Procedures.


 


In connection with the obligations of the
Company with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company shall, subject to the rights of the Company to invoke
and maintain a Suspension Period in accordance with Section 2.2 without being
in violation of any of the provisions hereunder:


 


(a)           prepare and file
with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply in


 


10

















 


all material respects
with the applicable requirements of Regulation S-T under the 1933 Act, and use
its commercially reasonable efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2 hereof;


 


(b)           prepare and file
with the SEC such amendments and post-effective amendments to each Registration
Statement as may be necessary under applicable law to keep such Registration
Statement effective for the Effectiveness Period (subject to Company’s ability
to declare Suspension Periods) and cause each Prospectus to be supplemented 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 1933 Act and comply
during the Effectiveness Period with the provisions of the 1933 Act, the 1934
Act and the rules and regulations thereunder required to enable the disposition
of all Registrable Securities covered by each Registration Statement in accordance
with the intended method or methods of distribution by the selling Holders
thereof (including sales by any Participating Broker-Dealer);


 


(c)           in the case of a
Shelf Registration, (i) notify each Holder of Registrable Securities of the
filing of the Shelf Registration Statement with respect to the Registrable
Securities; (ii) furnish to each Holder of Registrable Securities, without
charge, electronic copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to facilitate
the public sale or other disposition of the Registrable Securities; and (iii)
hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;


 


(d)           use its commercially
reasonable efforts to register or qualify the Registrable Securities under all
applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration Statement
becomes or is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities 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(d), or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject;


 


(e)           notify as promptly
as practicable each Holder of Registrable Securities under a Shelf Registration
or any Participating Broker-Dealer who has notified the Company that it is
utilizing the Exchange Offer Registration Statement as provided in paragraph
(f) below and, if requested by such Holder or Participating Broker-Dealer,
confirm such advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments thereto become
effective, (ii) of any request by


 


11

















 


the SEC or any
state securities authority for post-effective amendments and supplements to a
Registration Statement and 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 initiation of any proceedings
for that purpose, (iv) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes in
such Registration Statement or Prospectus in order to make the statements
therein (in the case of the Prospectus in light of the circumstances under
which they were made) not misleading, provided, however, that no notice by the Company shall be required
pursuant to this clause (v) in the event that the Company either promptly files
a Prospectus supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by reference into such
Registration Statement, which, in either case, contains the requisite
information with respect to such event or facts that results in such
Registration Statement no longer containing any untrue statement of material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading, (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for sale
in any jurisdiction or the initiation or, to the Company’s knowledge, threatening
of any proceeding for such purpose and (vii) of any determination by the
Company that a post-effective amendment to such Registration Statement would be
appropriate, other than post-effective amendment solely to add selling Holders;


 


(f)            in the case of the
Exchange Offer Registration Statement (i) include in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution” which section
shall be reasonably acceptable to Deutsche Bank Securities Inc. on behalf 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
Securities acquired for its own account as a result of market-making activities
or other trading activities and that will be the beneficial owner (as defined
in Rule 13d-3 under the 1934 Act) of Exchange Securities 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 Deutsche Bank Securities Inc. on behalf
of the Participating Broker-Dealers and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer, without charge, electronic 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 for a period not to exceed
90 days after the consummation of the Exchange Offer, (iii) hereby consent
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto, by any Person subject to the


 


12

















 


prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers,
in connection with the sale or transfer of the Exchange Securities covered by
the Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following provision:


 


“If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities 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 Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the 1933
Act;


 


(g)           use commercially reasonable
efforts to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable;


 


(h)           in the case of a
Shelf Registration, furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested);


 


(i)            if electronic
global certificates for the Registrable Securities are not then available,
cooperate with the selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing Registrable Securities
to be sold and not bearing any restrictive legends (other than as required by applicable
law); and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders may reasonably request at least three business days
prior to the closing of any sale of Registrable Securities;


 


(j)            in the case of a
Shelf Registration, upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(e)(ii), (iii), (iv), (v), (vi) and
(vii) hereof and subject to the Company’s ability to declare Suspension Periods,
as promptly as practicable after the occurrence of such an event, use its commercially
reasonable efforts to prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities or Participating
Broker-Dealers, such Prospectus will not contain at the time of such delivery
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not necessary,
in each case,


 


13

















 


to correct any
misstatement of a material fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder Registrable Securities covered by
such Registration Statement of such determination and to furnish each Holder
such number of copies of the Prospectus as amended or supplemented, as such
Holder may reasonably request;


 


(k)           in the case of a
Shelf Registration, a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus (except for any document filed under
the 1934 Act and which is to be incorporated by reference into a Registration
Statement or a Prospectus, and except for amendments and supplements that are
filed solely to name selling Holders) after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchasers on behalf
of such Holders; and make representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities, or the Initial Purchasers
on behalf of such Holders, available for discussion of such document;


 


(l)            obtain a CUSIP
number for all Exchange Securities, Private Exchange Securities or Registrable
Securities, 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
Securities, Private Exchange Securities or the Registrable Securities, as the
case may be, in a form eligible for deposit with the Depositary;


 


(m)          (i)  cause the Indenture to be qualified under the
TIA in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and (iii)
execute, and use its commercially reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;


 


(n)           in the case of a
Shelf Registration or if a Prospectus is required to be delivered by any
Participating Broker-Dealer in the case of an Exchange Offer, make available
for inspection during business hours by representatives of the Holders of the
Registrable Securities, any Participating Broker-Dealer and one legal firm
counsel or accountant retained by any of the foregoing, all financial and other
records, pertinent corporate documents of the Company reasonably requested by
any such persons, and cause the respective officers, directors, employees, and
any other agents of the Company to supply all information reasonably requested
by any such representative, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Company available
for discussion of such documents as shall be reasonably requested by the Initial
Purchasers;


 


(o)           (i)  in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or


 


14

















 


amendment or
supplement to such Prospectus, provide electronic copies of such document to
the Initial Purchasers and to counsel to the Initial Purchasers and make such
changes in any such document prior to the filing thereof as the Initial Purchasers
may reasonably request, and make the representatives of the Company available
for discussion of such documents as shall be reasonably requested by the Initial
Purchasers;


 


(ii)           in the case of a Shelf Registration,
a reasonable time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus (except for amendments and
supplements that are filed solely to name selling Holders), provide electronic copies
of such document to the Holders of Registrable Securities, to the Initial Purchasers
and to counsel for the Holders, if any, make such changes in any such document
prior to the filing thereof as the Initial Purchasers or the counsel to the
Holders reasonably request, and make the representatives of the Company
available for discussion of such document as shall be reasonably requested by
the Holders of Registrable Securities, the Initial Purchasers on behalf of such
Holders or counsel for the Holders of Registrable Securities; and


 


(p)           otherwise comply
with all applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 thereunder.


 


In the case of a Shelf Registration
Statement, the Company may (as a condition to such Holder’s participation in
the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing.


 


In the case of a Shelf Registration
Statement, each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(ii), (iii), (iv), (v), (vi) and (vii) hereof or a
Suspension Period, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(l) hereof, and, if so directed by the Company, such Holder will deliver
to the Company (at its 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 Securities current at the time of receipt of such
notice.


 


4.             Indemnification; Contribution.


 


(a)           The Company agrees to indemnify and
hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer,
and each Person, if any, who controls any Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:


 


15

















 


(i)            against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) or in any
Preliminary Prospectus or “issuer free writing prospectus,” as defined in Rule
433 (“Issuer FWP”) of the 1933 Act, relating to a Shelf Registration, pursuant
to which Exchange Securities or Registrable Securities were registered under
the 1933 Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;


 


(ii)           against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;  provided that (subject to Section 4(d) below)
any such settlement is effected with the written consent of the Company; and


 


(iii)          against any and all
expense whatsoever, as incurred (including the reasonable and documented fees
and disbursements of one firm of counsel chosen by any indemnified party),
reasonably incurred and documented in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


 


provided,
however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Holder expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or in any Preliminary Prospectus or Issuer FWP.


 


(b)           Each Holder severally, but not
jointly, agrees to indemnify and hold harmless the Company, the Initial Purchasers,
and the other selling Holders, and each of their respective directors and
officers, and each Person, if any, who controls the Company, the Initial Purchasers,
or any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as incurred
and documented, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in any Registration Statement (or
any amendment thereto), any Prospectus included therein (or any amendment or
supplement thereto) or in any Preliminary Prospectus or Issuer FWP in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by or on behalf of such Holder expressly for use
therein; provided, however,
that no such Holder shall


 


16

















 


be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement (or any amendment thereto).


 


(c)           Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
the indemnity agreement in this Section 4. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying party or parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.


 


(d)           If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 60 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms
of such settlement at least 45 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.


 


(e)           If the indemnification provided for
in this Section 4 is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Holders and the Initial Purchasers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.


 


The relative fault of the Company on the one
hand and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to


 


17

















 


state a material fact relates to information
supplied by the Company, the Holders or the Initial Purchasers and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.


 


The Company, the Holders and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.


 


Notwithstanding the provisions of this
Section 4, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities sold by
it were offered exceeds the amount of any damages which such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.


 


No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.


 


For purposes of this Section 4, each Person,
if any, who controls an Initial Purchaser or Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
indemnification and contribution as such Initial Purchaser or Holder, and each officer
and director of the Company, and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Initial
Purchasers’ respective obligations to contribute pursuant to this Section 4 are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule I to the Purchase Agreement and not joint.


 


5.             Miscellaneous.


 


5.1           Rule 144 and Rule 144A.
If the Company ceases to be so required to file reports pursuant to Section 13
or 15(d) of the Exchange Act, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available
such information as is necessary to permit sales pursuant to Rule 144 under the
1933 Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable Securities 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 Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act,
as such Rule may be amended from time to time,


 


18

















 


(ii) Rule 144A under the 1933 Act, as such Rule may be amended from
time to time, or (iii) any similar rules or regulations hereafter adopted by
the SEC.


 


5.2           No Inconsistent Agreements.
The Company has not entered into and the Company will not after the date of this
Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company’s other issued
and outstanding securities under any such agreements.


 


5.3           Amendments and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers 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 Securities affected by such amendment, modification,
supplement, waiver or departure.


 


5.4           Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (a) if to a Holder, at the most current address
given by such Holder to the Company by means of a notice given in accordance
with the provisions of this Section 5.4, which address initially is the address
set forth in the Purchase Agreement with respect to the Initial Purchasers; and
(b) if to the Company, initially at the Company’s address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.


 


All such notices and communications shall be
deemed to have been duly given:  at the
time delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is 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 under the Indenture, at the address specified in such Indenture.


 


5.5           Successor and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors, assigns
and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement, the Indenture


 


19

















 


and, if applicable, the Purchase Agreement, and such person shall be
entitled to receive the benefits hereof.


 


5.6           Third Party Beneficiaries. The
Initial Purchasers (even if the Initial Purchasers are not Holders of Registrable
Securities) shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder. Each Holder of Registrable Securities shall be a
third party beneficiary to 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 hereunder.


 


5.7           Restriction on Resales. Until
the expiration of two years after the original issuance of the Securities, the
Company will not, and will cause its “affiliates” (as such term is defined in
Rule 144(a)(1) under the 1933 Act) not to, resell any Securities which are “restricted
securities” (as such term is defined under Rule 144(a)(3) under the 1933 Act)
that have been reacquired by any of them and shall immediately upon any
purchase of any such Securities submit such Securities to the Trustee for
cancellation.


 


5.8           Counterparts. This Agreement
may be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.


 


5.9           Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.


 


5.10         GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.


 


5.11         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.


 


20

















 


IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first written above.


 


	
   

  	
  THE AES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ VICTORIA
  HARKER

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Victoria
  Harker

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and

  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Confirmed
  and accepted as

  	
   

  	
   

  
	
  of the date first above

  	
   

  	
   

  
	
  written:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DEUTSCHE BANK SECURITIES INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ FRANK KINNEY

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Frank Kinney

  	
   

  	
   

  
	
   

  	
  Title:  Managing Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ DAVID CRESCENZI

  	
   

  	
   

  	
   

  
	
   

  	
  Name: David Crescenzi

  	
   

  	
   

  
	
   

  	
  Title:   Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CREDIT SUISSE SECURITIES (USA) LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ DAVID S. ALTERMAN

  	
   

  	
   

  	
   

  
	
   

  	
  Name: David S. Alterman

  	
   

  	
   

  
	
   

  	
  Title:   Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  	
   

  	
   

  
	
  INCORPORATED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ PARTHO SANYAL

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Partho Sanyal

  	
   

  	
   

  
	
   

  	
  Title: Vice President

  	
   

  	
   

  
							



 


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