Quarterly Report — Form 10-Q Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-Q Quarterly Report HTML 214K
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 113K Liquidation or Succession
3: EX-4.1 Instrument Defining the Rights of Security Holders HTML 482K
4: EX-10.3 Material Contract HTML 127K
5: EX-31.1 Certification per Sarbanes-Oxley Act (Section 302) HTML 12K
6: EX-31.2 Certification per Sarbanes-Oxley Act (Section 302) HTML 12K
7: EX-32.1 Certification per Sarbanes-Oxley Act (Section 906) HTML 8K
8: EX-32.2 Certification per Sarbanes-Oxley Act (Section 906) HTML 8K
EX-2.1 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Kansas City Southern de México, S.A. de C.V., a sociedad anónima de capital variable organized
under the laws of the United Mexican States (the “Company”), proposes to issue and sell to Banc of
America Securities LLC and SunTrust Robinson Humphrey, Inc., Scotia Capital (USA) Inc. and DVB
Capital Markets LLC (the “Placement Agents”), U.S. $200,000,000 principal amount of its 121/2% Senior
Notes Due 2016 (the “Securities”), upon the terms set forth in the Placement Agreement between the
Company and the Placement Agents dated March 24, 2009 (the “Placement Agreement”) relating to the
initial placement (the “Initial Placement”) of the Securities. To induce the Placement Agents to
enter into the Placement Agreement and to satisfy a condition to your obligations thereunder, the
Company agrees with you for your benefit and the benefit of the holders from time to time of the
Securities (including the Placement Agents) (each a “Holder” and, collectively, the “Holders”), as
follows:
1. Definitions. Capitalized terms used herein without definition shall have their respective
meanings set forth in the Placement Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative thereto.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Closing Date” shall mean the date of the first issuance of the Securities.
“Commission” shall mean the Securities and Exchange Commission.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Exchange Offer Registration Period” shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.
“Exchange Offer Registration Statement” shall mean a registration statement of the Company on
an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Exchanging Dealer” shall mean any Holder (which may include the Placement Agents) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its own
account as a result of market-making activities or other trading activities (but not directly from
the Company or any Affiliate of the Company) for New Securities.
“Final Memorandum” shall mean the offering memorandum, dated March 24, 2009, relating to the
Securities, including any and all exhibits and appendices thereto and any information incorporated
by reference therein as of such date.
“FINRA Rules” shall mean the Conduct Rules and the By-Laws of the Financial Industry
Regulatory Authority, Inc.
“Holder” shall have the meaning set forth in the preamble hereto.
“Indenture” shall mean the Indenture relating to the Securities, dated as of March 30, 2009,
among the Company, U.S. Bank National Association, as trustee and paying agent, as the same may be
amended from time to time in accordance with the terms thereof.
“Initial Placement” shall have the meaning set forth in the preamble.
“Losses” shall have the meaning set forth in Section 6(d) hereof.
“Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal
amount of outstanding Securities registered under a Registration Statement.
“Managing Underwriters” shall mean the investment bank or investment banks and manager or
managers that administer an underwritten offering, if any, under a Registration Statement.
“New Securities” shall mean debt securities of the Company identical in all material respects
to the Securities (except that the transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the New Securities Indenture.
“New Securities Indenture” shall mean an indenture between the Company and the New Securities
Trustee, identical in all material respects to the Indenture (except that the transfer restrictions
shall be modified or eliminated, as appropriate), which may be the Indenture if in the terms
thereof appropriate provision is made for the New Securities.
“New Securities Trustee” shall mean a bank or trust company reasonably satisfactory to the
Placement Agents, as trustee with respect to the New Securities under the New Securities Indenture.
“Prospectus” shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto, including any and all exhibits thereto and any information
incorporated by reference therein.
“Registered Exchange Offer” shall mean the proposed offer of the Company to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities, a like aggregate principal amount
of the New Securities.
“Registrable Securities” shall mean (i) Securities other than those that have been (A)
registered under a Registration Statement and exchanged or otherwise disposed of in accordance
therewith or (B) distributed to the public pursuant to Rule 144 under the Act or any successor rule
or regulation thereto that may be adopted by the Commission and (ii) any New Securities, the resale
of which by the Holder thereof requires compliance with the prospectus delivery requirements of the
Act.
“Registration Default Damages” shall have the meaning set forth in Section 8 hereof.
“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any 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.
“Securities” shall have the meaning set forth in the preamble hereto.
“Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.
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“Shelf Registration Period” has the meaning set forth in Section 3(b)(ii) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company
pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule
that may be adopted by the Commission, 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.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“underwriter” shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the Commission, the Company shall as promptly as
practicable prepare and file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Company shall use its reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective under the Act and to complete
the Registered Exchange Offer within 360 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such
Holder is not an Affiliate of the Company, acquires the New Securities in the ordinary course of
such Holder’s business, has no arrangements with any person to participate in the distribution of
the New Securities and is not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer) to trade such New Securities from and after their receipt without
any limitations or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United States.
(c) In connection with the Registered 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 Registered Exchange Offer open for not less than 20 Business Days and use
its reasonable best efforts to keep the Registered Exchange Offer open for not more than 40
Business Days after the date notice thereof is mailed to the Holders (or, in each case,
longer if required by applicable law);
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(iii) use its reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective under the Act, supplemented and amended as required, under the Act to
ensure that it is available for sales of New Securities by Exchanging Dealers during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities (in accordance with the procedures
set forth in the Exchange Offer Registration Statement) at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Company is conducting the
Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub. avail.
June 5, 1991); and (B) including a representation that the Company has not entered into any
arrangement or understanding with any person to distribute the New Securities to be received
in the Registered Exchange Offer and that, to the Company’s information and belief, each
Holder participating in the Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding with any person to
participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Company
shall:
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for cancellation in accordance
with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate and deliver to each
Holder of Securities a principal amount of New Securities equal to the principal amount of
the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities
(i) could not under Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and
Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter
to Shearman & Sterling dated July 2, 1993 and similar no-action letters and (ii) must comply with
the registration and prospectus delivery requirements of the Act in connection with
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any secondary
resale transaction, which must 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
under the Act if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that:
(i) any New Securities to be received by such Holder will be acquired in the ordinary
course of business;
(ii) at the time of the consummation of the Registered Exchange Offer, such Holder will
have no arrangement or understanding with any person to participate in the distribution of
the Securities or the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company;
and to make such other representations as may be necessary under applicable Commission rules,
regulations or interpretations to render the use of the Form S-4 or other appropriate form under
the Act available.
(f) If, in the reasonable opinion of the Placement Agents, it is not eligible to participate
in the Registered Exchange Offer with respect to the exchange of Securities constituting any
portion of an unsold allotment, at the request of the Placement Agents, the Company shall issue and
deliver to the Placement Agents or the person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from the Placement Agents, in exchange
for such Securities, a like principal amount of New Securities. The Company shall use its
reasonable best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such
New Securities as for New Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable interpretations
thereof by the Commission’s staff, the Company determines upon advice of its outside counsel that
it is not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof;
(ii) for any other reason the Registered Exchange Offer is not consummated within 360 days of the
date hereof; (iii) any Holder (other than the Placement Agents) is not eligible to participate in
the Registered Exchange Offer other than by reason of such Holder being an Affiliate of the
Company; (iv) based on their reasonable opinion, the Placement Agents so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer that are held by them following consummation of the Registered Exchange Offer, such request
being in writing and delivered to the Company; or (v) in the case that the Placement Agents
participate in the Registered Exchange Offer or acquire New Securities pursuant to Section 2(f)
hereof, in their reasonable opinion the Placement Agents do not receive freely tradeable New
Securities in exchange for Securities constituting any portion of
an unsold allotment (it being understood that (A) the requirement that the Placement Agents
deliver a Prospectus containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of New Securities acquired in exchange for such Securities shall
result in such New Securities being not “freely tradeable” and (B) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
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Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities being not “freely
tradeable”), the Company shall effect a Shelf Registration Statement in accordance with subsection
(b) below.
(b) (i) The Company shall as promptly as practicable file with the Commission and shall use
its reasonable best efforts to cause to be declared effective under the Act within 360 days after
the Closing Date, a Shelf Registration Statement relating to the offer and sale of the Securities
or the New Securities, as applicable, by the Holders thereof from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf Registration
Statement; provided, however, that no Holder (other than the Placement Agents) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder
(it being understood that Holders who would have received freely transferable Securities pursuant
to the Registered Exchange Offer had they not (A) failed to duly tender their Securities for
exchange pursuant to the Registered Exchange Offer (other than the Placement Agents in connection
with Securities held by them constituting any portion of an unsold allotment), or otherwise failed
to comply with the requirements of the Registered Exchange Offer as provided in Section 2 hereof or
(B) failed to furnish to the Company such information as the Company may request in accordance with
Section 4(o) in connection with a Shelf Registration Statement, shall not retain any rights under
this Agreement, including any right to have Securities owned by them included in any Shelf
Registration Statement); and provided further that, with respect to New Securities received by the
Placement Agents in exchange for Securities constituting any portion of an unsold allotment, the
Company may, if permitted by current interpretations by the Commission’s staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing the information
required by Item 507 or 508 of Regulation S-K of the Act, as applicable, in satisfaction of its
obligations under this subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(ii) The Company shall, except as permitted under Section 4(k)(ii), keep the Shelf
Registration Statement continuously effective, supplemented and amended as required by the Act, in
order to permit the Prospectus forming part thereof to be usable by Holders for a period (the
“Shelf Registration Period”) from the date the Shelf Registration Statement is declared effective
by the Commission until (A) the first anniversary thereof or (B) the earlier date upon which all
the Securities or New Securities, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement.
(iii) The Company shall cause the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material respects
with the applicable requirements of the Act; and (B) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
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4. Additional Registration Procedures. In connection with any Shelf Registration Statement
and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions
shall apply.
(i) furnish to the Placement Agents and to counsel for the Majority Holders, not less
than five Business Days prior to the filing thereof with the Commission, a copy of any
Exchange Offer Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the Prospectus included
therein (including all documents incorporated by reference therein after the initial filing)
and shall use its reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as the Placement Agents may reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing page of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by the Placement Agents, include the information required by Item
507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Exchange
Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders
that propose to sell Securities pursuant to the Shelf Registration Statement as selling
security holders.
(i) any Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto complies in all material respects with
the Act; and
(ii) any 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.
(c) The Company shall advise the Placement Agents, the Holders of Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by any Placement Agent or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the
Company shall have remedied the basis for such suspension):
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(i) when a Registration Statement and any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any proceeding for that
purpose;
(iv) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the securities included therein for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue
statement of a material fact and (B) do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of any Registration Statement or the qualification of the securities
therein for sale in any jurisdiction and, if issued, to obtain as soon as possible the withdrawal
thereof.
(e) The Company shall furnish to each Holder of Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated therein by reference, and, if
the Holder so requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities covered by any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including the Preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request. The Company consents to
the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including all material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
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(h) The Company shall promptly deliver to the Placement Agents, each Exchanging Dealer and
each other person required to deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement thereto by the
Placement Agents, any Exchanging Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the offering and sale of the
New Securities covered by the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any
Registration Statement, the Company shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where
it is not then so qualified or to take any action that would subject it to service of process in
suits in any such jurisdiction where it is not then so subject.
(j) The Company shall cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing New Securities or Securities to be issued or sold pursuant to
any Registration Statement free of any restrictive legends and in such denominations and registered
in such names as Holders may request at least two Business Days prior to such sale of Securities or
New Securities.
(k) (i) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Company shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered, the Prospectus will not include an
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. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 shall be extended by the
number of days from and including the date of the giving of a notice of suspension pursuant
to Section 4(c) to and including the date when the Placement Agents, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section.
(ii) Upon the happening of any event of the kind described in subsection (c)(v) hereof,
or the determination by the Company that, in its reasonable judgment and upon written advice
of counsel, the continued effectiveness and use of the Shelf Registration Statement would
require the disclosure of confidential information or interfere with any
financing, acquisition, reorganization or other material transaction involving the Company,
such Holder will forthwith discontinue disposition of Securities or New Securities pursuant
to a Registration Statement until such Holder’s receipt of the copies of the supplemented or
amended Prospectus contemplated by subsection (f) hereof (or a notice from the Company that
such Holder may resume use of the existing Prospectus), and, if so directed by the Company,
such Holder will deliver to the Company (at the
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Company’s expense) all copies in its
possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Securities pursuant to a
Registration Statement, the Company shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to and including
the date when the Holders shall have (A) received copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (B) a notice permitting use of the
existing Prospectus. The Company may give any such notice only twice during any 365-day
period and any such suspensions may not exceed 30 days for each suspension and there may not
be more than two suspensions in effect during any 365-day period.
(l) Not later than the effective date of any Registration Statement, the Company shall provide
a CUSIP number for the Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company shall comply in all material respects with all applicable rules and
regulations of the Commission and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Act as soon as practicable
after the effective date of the applicable Registration Statement and in any event no later than 90
days after the end of a 12-month period (or 180 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the effective date of
the applicable Registration Statement.
(n) The Company shall cause the New Securities Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Company may require each Holder of Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding the Holder and the
distribution of such securities as the Company may from time to time reasonably require for
inclusion in such Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities of any Holder that fails to furnish such information within a reasonable
time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall enter into customary
agreements (including, if requested, an underwriting agreement in customary form) and take all
other appropriate actions in order to expedite or facilitate the registration or the disposition of
the Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Holders of Securities to be
registered thereunder, any underwriter participating in any disposition pursuant to such
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Registration Statement, and any attorney, accountant or other agent retained by the Holders
or any such underwriter all relevant financial and other records and pertinent corporate
documents of the Company and its subsidiaries; provided, however, that, if any such records,
documents or other information are related to pending or proposed acquisitions or
dispositions, or otherwise related to matters reasonably considered by the Company to
constitute sensitive or proprietary information, the Company need not provide such records,
documents or information unless the foregoing parties enter into a confidentiality agreement
in customary form and reasonably acceptable to such parties and the Company;
(ii) cause the Company’s officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such underwriter,
legal counsel, accountant or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however, that such information
may not be used for any other purpose than due diligence and provided further, however, that
any information that is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by the Holders or any
such underwriter, legal counsel, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Placement Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain comfort letters and updates thereof from the independent certified public
accountants 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 selling Holder of Securities
registered thereunder and the underwriters, if any, provided that such letters need not
be addressed to any Holder to whom, in the reasonable opinion of the Company’s independent
public accountants, addressing such letter is not permissible under applicable accounting
standards, in customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings;
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(vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders or the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company; and
(vii) if reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, (A) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein and (B) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q) shall be performed
at (i) the effectiveness of such Registration Statement and each post-effective amendment thereto
and (ii) each closing under any underwriting or similar agreement as and to the extent required
thereunder.
(r) In the case of any Exchange Offer Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Placement Agents, and any legal
counsel, accountant or other agent retained by the Placement Agents, all relevant financial
and other records, pertinent corporate documents and properties of the Company and its
subsidiaries; provided, however, that, if any such records, documents or other information
related to pending or proposed acquisitions or dispositions, or otherwise related to matters
reasonably acceptable to such parties and the Company to constitute sensitive or proprietary
information, the Company need not provide such records, documents or information unless the
foregoing parties enter into a confidentiality agreement in customary form and reasonably
acceptable to such parties and the Company;
(ii) cause the Company’s officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Placement Agents or any such
attorney, accountant or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however, that such information
may not be used for any purpose other than due diligence and provided, further, however,
that any information that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept confidential by the
Placement Agents or any such attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such information becomes
available to the public through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Placement Agents, in form,
substance and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to, those set forth
in the Placement Agreement;
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(iv) obtain opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the Placement
Agents and their counsel, addressed to the Placement Agents, covering such matters as are
customarily covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the Placement Agents or their counsel;
(v) obtain comfort letters and updates thereof from the independent certified public
accountants 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 the Placement Agents, in customary form and covering
matters of the type customarily covered in comfort letters in connection with primary
underwritten offerings, or if requested by the Placement Agents or their counsel in lieu of
a comfort letter, an agreed-upon procedures letter under Statement on Auditing Standards No.
35, covering matters requested by the Placement Agents or their counsel; and
(vi) deliver such documents and certificates as may be reasonably requested by the
Placement Agents or their counsel, including those to evidence compliance with Section 4(k)
and with conditions customarily contained in underwriting agreements;
provided, however that the Company will be required to perform the foregoing actions set forth
in clauses (i) through (vi) only upon the reasonable request by the Placement Agents to the Company
or the reasonable request in writing to the Company by one or more broker-dealers who certify to
the Placement Agents and the Company in writing that they anticipate they will receive New
Securities for their own account in the Exchange Offer for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities, and, based on the position
of the Commission as described in Section 2(e), will be required to satisfy the prospectus delivery
obligation under the Act in connection with the resale of such New Securities; and provided
further, that the Company will not be required to amend or supplement the Prospectus contained in
the Exchange Offer Registration Statement for a period exceeding the Exchange Offer Registration
Period, and such broker-dealers shall not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with resales contemplated in this
subsection (r); and provided, further, that the Company will be obligated to deal only with one
entity representing such broker-dealers, which shall be Banc of America Securities LLC, unless it
elects not to act as such representative, and to pay the reasonable fees and expenses of only one
counsel representing such broker-dealers, which shall be the counsel to the Placement Agents,
unless such counsel elects not to so act, and to cause to be delivered only one, if any, comfort
letter with respect to the Prospectus in the form existing on the expiration of the Exchange Offer
and with respect to each subsequent amendment or supplement, if any, effected during the period
specified above.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be
performed at the close of the Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration Statement.
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(s) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by
Holders to the Company (or to such other person as directed by the Company) in exchange for the New
Securities, the Company shall mark, or cause to be marked, on the Securities so exchanged that such
Securities are being cancelled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(t) The Company shall use its reasonable best efforts to confirm that the ratings issued to
the Securities prior to their initial sale will apply to the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
(u) In the event that any Broker-Dealer shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or “assist in the distribution” (within the
meaning of the FINRA Rules) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall
assist such Broker-Dealer in complying with the FINRA Rules.
(v) The Company shall use its reasonable best efforts to take all other steps necessary to
effect the registration of the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and disbursements of one
firm or counsel (which shall initially be Shearman & Sterling LLP, but which may, with the written
consent of the Placement Agents, be another nationally recognized law firm experienced in
securities matters designated by the Majority Holders) to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration Statement, will reimburse
the Placement Agents for the reasonable fees and disbursements of counsel acting in connection
therewith. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder’s Securities pursuant to the Shelf
Registration Statement.
6. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless
each Holder of Securities or New Securities, as the case may be, covered by any Registration
Statement, the Placement Agents and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer, the directors, officers, employees and agents of each
such Holder, the Placement Agents or Exchanging Dealer and each person who controls any such
Holder, the Placement Agents or Exchanging Dealer within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, including all
documents incorporated by reference therein or in any preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make
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the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the
light of the circumstances under which they were made) not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein; provided further, however, that with respect to
any untrue statement or omission of a material fact made in any preliminary Prospectus, the
indemnity agreement contained in this Section shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability purchased the Securities or New
Securities, as the case may be, to the extent that any such loss, claim, damage or liability of
such Holder occurs under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (i) the untrue statement or
omission of a material fact contained in the preliminary Prospectus was corrected in the
Prospectus, (ii) the Company had previously furnished copies of the Prospectus to such Holder prior
to the written confirmation of the sale of such Securities or New Securities and (iii) such loss,
claim, damage or liability results from the fact that there was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities or New Securities, as the case
may be, to such person, a copy of the Prospectus; and provided further, however, that the Company
shall not be liable to an indemnified party with respect to any Prospectus or Registration
Statement or any amendment or supplement thereof to the extent that any such loss, claim, damage,
liability or action of such indemnified party arises out of, or is based upon, (i) the use of any
Registration Statement during a period when a stop order has been issued by the Commission in
respect thereof or (ii) the use of the Prospectus during a period when the use of the Prospectus
has been suspended in accordance with the instructions of the Company because of the discovery of
any untrue statement or omission of a material fact therein, provided that all Holders of
Securities or New Securities received prior written notice of such stop order or suspension and
such indemnified party, knowingly and voluntarily continued to use such Prospectus or Registration
Statement. This indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
The Company also agrees to indemnify as provided in this Section 6(a) or contribute as
provided in Section 6(d) hereof to Losses of each underwriter, if any, of Securities or New
Securities, as the case may be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Placement Agents and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement (including the Placement
Agents, but only if such Placement Agent is a Holder, in such capacity) severally and
not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of
its officers who signs such Registration Statement and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to written information
16
relating to
such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying party, retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel (including local counsel) to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “Losses”) to which
such indemnified party may be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which resulted in such
17
Losses; provided, however, that in no case shall the Placement Agents be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was exchangeable into
such New Security, nor shall any Holder be responsible, in the aggregate for any amount in excess
of the amount by which the total price at which Registrable Securities were sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission which resulted in such
Losses, nor shall any underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the sum of (i) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the Final Memorandum and
(ii) the total amount of additional interest which the Company was not required to pay as a result
of registering the securities covered by the Registration Statement which resulted in such Losses.
Benefits received by the Placement Agents shall be deemed to be equal to the total purchase
discounts and commissions less any expenses reimbursed pursuant to Section 6(f) of the Placement
Agreement, and benefits received by any other Holders shall be deemed to be equal to the value of
receiving Securities or New Securities, as applicable, registered under the Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions,
as set forth on the cover page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the indemnifying party, on the
one hand, or by the indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have
the same rights to contribution as such Holder, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement
and each director of the Company shall have the same rights to contribution as the
Company,
subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Company or any of the officers,
18
directors
or controlling persons referred to in this Section hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New Securities, as the case
may be, covered by any Shelf Registration Statement are to be sold in an underwritten offering, the
Managing Underwriters shall be selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Registration Defaults. If any of the following events shall occur, then the Company shall
pay liquidated damages (the “Registration Default Damages”) to the Holders of Securities in respect
of the Securities as follows:
(a) if on or prior to the 360th day of following the Closing Date, neither the
Registered Exchange Offer has been completed nor the Shelf Registration Statement has been
declared effective, then Registration Default Damages shall accrue on the Registrable
Securities at a rate of .25% per annum and shall be payable in accordance with the interest
payment provisions of the Securities; or
(b) if any Registration Statement required by this Agreement has been declared
effective but ceases to be effective at any time at which it is required to be effective
under this Agreement, then commencing on the day the Registration Statement ceases to be
effective, Registration Default Damages shall accrue on the Registrable Securities at a rate
of .25% per annum and shall be payable in accordance with the interest payment provisions of
the Securities;
provided, however, that (i) upon completion of the Registered Exchange Offer or the effectiveness
of the Shelf Registration Statement (in the case of paragraph (a) above), or (ii) upon the
effectiveness of the Registration Statement which had ceased to remain effective (in the case of
paragraph (b) above), Registration Default Damages shall cease to accrue.
9. No Inconsistent Agreements. The Company has not entered into, and agrees not to enter
into, any agreement with respect to its securities that is inconsistent with the rights granted to
the Holders herein or that otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be amended, qualified,
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 the
Holders of a majority of the aggregate principal amount of the Registrable Securities outstanding;
provided that, with respect to any matter that directly or indirectly affects the rights of the
Placement Agents hereunder, the Company shall obtain the written consent of the Placement Agents
against which such amendment, qualification, supplement, waiver or consent
19
is to be effective;
provided, further, that no amendment, qualification, supplement, waiver or consent with respect to
Section 8 hereof shall be effective as against any Holder of Registered Securities unless consented
to in writing by such Holder; and provided further that the provisions of this Section 10 may not
be amended, qualified, 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 the
Placement Agents and each Holder. Notwithstanding the foregoing (except the foregoing provisos), a
waiver or consent to departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the basis of Securities
or New Securities, as the case may be, being sold rather than registered under such Registration
Statement.
11. Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to the Company in
accordance with the provisions of this Section 11, which address initially is, with respect
to each Holder, the address of such Holder maintained by the Registrar under the Indenture;
(b) if to the Placement Agents, initially at the address or addresses set forth in the
Placement Agreement; and
(c) if to the Company, initially at its address set forth in the Placement Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Placement Agents or the Company by notice to the other parties may designate additional or
different addresses for subsequent notices or communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all rights provided to
it herein, in the Indenture or in the Placement Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to
waive in any action for specific performance the defense that a remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns, including, without the need for an express
assignment or any consent by the Company thereto, subsequent Holders of Securities and the New
Securities. The Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
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14. Jurisdiction. Each of the parties hereto agrees that any suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated hereby may be
instituted in any State or U.S. federal court in The City of New York and County of New York, and
waives any objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the jurisdiction of such courts in any suit, action or
proceeding. The Company hereby appoints C T Corporation System, 111 Eighth Avenue, New York, NewYork10011, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any
suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any State or U.S. federal court in The City of New
York and County of New York, by any Holder or the Placement Agents, the directors, officers,
employees and agents of any Holder or the Placement Agents, or by any person who controls any
Holder or the Placement Agents, and expressly accepts the jurisdiction of any such court in respect
of any such suit, action or proceeding. The Company hereby represents and warrants that the
Authorized Agent has accepted such appointment and has agreed to act as said agent for service of
process, and the Company agrees to take any and all action, including the filing of any and all
documents that may be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect, effective service
of process upon the Company. The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be necessary to continue
such designation and appointment in full force and effect so long as any of the Securities shall be
outstanding. To the extent that the Company may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of this Agreement, to the fullest extent
permitted by law.
15. Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”) is
of the essence. To the fullest extent permitted by law, the obligation of the Company in respect
of any amount due under this Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in
the relevant currency that the party entitled to receive such payment may, in accordance with its
normal procedures, purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the Company will pay such additional amounts, in the relevant
currency, as may be necessary to compensate for the shortfall. Any obligation of the Company not
discharged by such payment will, to the fullest extent permitted by applicable law, be due as a
separate and independent obligation and, until discharged as provided herein, will continue in full
force and effect.
16. Waiver of Immunity. To the extent that the Company has or hereafter may acquire any
immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of
any court or from set-off or any legal process (whether service or notice, attachment in aid or
otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of its obligations under this Agreement.
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17. Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Placement Agents, 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.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which
shall constitute an original and all of which together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for convenience only and shall not affect
the construction hereof.
20. Applicable Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed in the State of New
York.
21. Severability. In the event that any one of more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
22. Securities Held by the Company, etc. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities or New Securities is required hereunder,
Securities or New Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage.
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EXECUTION COPY
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the Placement Agents.
Each broker-dealer that receives new securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new
securities. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Act. This prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of new securities received in exchange for
securities where such securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The company has agreed that, starting on the expiration
date and ending on the close of business one year after the expiration date, it will make this
prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of
Distribution”.
ANNEX B
Each broker-dealer that receives new securities for its own account in exchange for
securities, where such securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such new securities. See “Plan of Distribution”.
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new
securities. This prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in exchange for securities
where such securities were acquired as a result of market-making activities or other trading
activities. The company has agreed that, starting on the expiration date and ending on the close
of business one year after the expiration date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such resale.
The company will not receive any proceeds from any sale of new securities by brokers-dealers.
New securities received by broker-dealers for their own account pursuant to the Exchange Offer may
be sold from time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealer and/or the purchasers of any such new securities. Any broker-dealer
that resells new securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such new securities may be
deemed to be an “underwriter” within the meaning of the Act and any profit of any such resale of
new securities and any commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Act. The Letter of Transmittal states that by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an “underwriter” within the meaning of the Act.
For a period of one year after the expiration date, the company will promptly send additional
copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The company has agreed to pay all
expenses incident to the Exchange offer (including the expenses of one counsel for the holder of
the securities) other than commissions or concessions of any brokers or dealers and will indemnify
the holders of the securities (including any broker-dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________
Address: __________________________
__________________________
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
person to participate in a distribution of the New Securities nor will it have any such
arrangements or understandings upon consummation of the Exchange Offer. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired by it as a result
of market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter”
within the meaning of the Act.
Dates Referenced Herein and Documents Incorporated by Reference
