EXHIBIT 4.6
-------------------------------------------------------------------------------
E55,000,000 10 5/8% Senior Secured Notes due 2011
REGISTRATION RIGHTS AGREEMENT
Dated as of July 20, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ (publ)
and
Deutsche Bank AG London
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
1. Definitions..............................................................................................1
2. Exchange Offer...........................................................................................4
3. Shelf Registration Statement.............................................................................7
4. Liquidated Damages.......................................................................................8
5. Registration Procedures.................................................................................10
6. Registration Expenses...................................................................................17
7. Indemnification and Contribution........................................................................18
8. Rule 144A...............................................................................................22
9. Underwritten Registrations..............................................................................22
10. Miscellaneous...........................................................................................22
(a) No Inconsistent Agreements.....................................................................22
(b) Adjustments Affecting Transfer Restricted Securities...........................................22
(c) Amendments and Waivers.........................................................................22
(d) Notices........................................................................................23
(e) Successors and Assigns.........................................................................24
(f) Counterparts...................................................................................24
(g) Headings.......................................................................................24
(h) Governing Law..................................................................................24
(i) Remedies.......................................................................................24
(j) Submission to Jurisdiction; Appointment of Agent for Service; Waiver...........................25
(k) Currency Indemnity.............................................................................25
(l) Severability...................................................................................26
(m) Securities Held by the Company or Its Affiliates...............................................26
(n) Third Party Beneficiaries......................................................................26
(o) Entire Agreement...............................................................................26
i
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the "AGREEMENT") is dated
as of July 20, 2001, among Preem Holdings AB (publ), a company organized under
the laws of the Kingdom of Sweden (the "COMPANY") and Deutsche Bank AG London
(the "INITIAL PURCHASER").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 13, 2001, between the Company and the Initial
Purchaser (the "PURCHASE AGREEMENT"), which provides for the sale by the Company
to the Initial Purchaser of its E55,000,000 10 5/8% Senior Secured Notes due
2011 (the "SECURITIES"). The Securities are to be issued under the indenture
dated as of April 10, 2001 (the "INDENTURE"), between the Company, Deutsche Bank
AG London, as Principal Paying Agent, and Bankers Trust Company, as Trustee. In
order to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns.
The parties hereby agree as follows:
1. DEFINITIONS
Unless otherwise defined herein, terms defined in the
Indenture shall be used herein as defined therein. As used in this Agreement,
the following terms shall have the following meanings:
"ADVICE": As defined in Section 5 hereof.
"AGREEMENT": As defined in the first introductory paragraph
hereof.
"APPLICABLE PERIOD": As defined in Section 2(b) hereof.
"BUSINESS DAY": A day other than a Saturday, Sunday, or other
day in which commercial banking institutions are authorized or required
by law to close in
New York City, Stockholm, Sweden, London or
Luxembourg.
"CLEARSTREAM": Clearstream Banking, SOCIETE ANONYME.
"COMMON DEPOSITARY": The common depositary for Euroclear and
Clearstream Banking, or its nominee.
"COMPANY": As defined in the first introductory paragraph
hereto.
"EFFECTIVENESS PERIOD": As defined in Section 3(a) hereof.
"EFFECTIVENESS TARGET DATE": The 180th day after April 10,
2001.
"EUROCLEAR": ▇▇▇▇▇▇ Guaranty Trust Company of
New York,
Brussels office, as operator of the Euroclear System.
"EVENT DATE": As defined in Section 4(b) hereof.
2
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"EXCHANGE OFFER": As defined in Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT": As defined in
Section 2(a) hereof.
"EXCHANGE SECURITIES": As defined in Section 2(a) hereof.
"FILING DATE": The 75th day after the Issue Date.
"HOLDER": Any holder of Transfer Restricted Securities.
"INDENTURE": As defined in the second introductory paragraph
hereto.
"INITIAL PURCHASER": As defined in the first introductory
paragraph hereto.
"INSPECTORS": As defined in Section 5(o) hereof.
"ISSUE DATE": The date of the issuance of the Securities
under the Indenture.
"LIQUIDATED DAMAGES": As defined in Section 4(a) hereof.
"NASD": As defined in Section 5(s) hereof.
"PARTICIPANT": As defined in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER": As defined in Section 2(b)
hereof.
"PERSON": An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
"PRIVATE EXCHANGE": As defined in Section 2(b) hereof.
"PRIVATE EXCHANGE SECURITIES": As defined in Section 2(b)
hereof.
"PROSPECTUS": The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, and all
other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT": As defined in the second introductory
paragraph hereto.
"RECORDS": As defined in Section 5(o) hereof.
3
"REGISTRATION STATEMENT": Any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement or the Shelf Registration Statement, filed with the SEC
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such
registration statement.
"RULE 144": Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC providing
for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
"RULE 144A": Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule
(other than Rule 144) or regulation hereafter adopted by the SEC.
"RULE 415": Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
"SEC": The U.S. Securities and Exchange Commission.
"SECURITIES": As defined in the second introductory paragraph
hereto.
"SECURITIES ACT": The United States Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated
thereunder.
"SHELF NOTICE": As defined in Section 2(c) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 3(a)
hereof.
"TRANSFER RESTRICTED SECURITIES": Each Security until the
earliest to occur of (i) the date on which such Security has been
exchanged by a Person (other than a Participating Broker-Dealer) for
Exchange Securities in the Exchange Offer, (ii) following the exchange
by a Participating Broker-Dealer in the Exchange Offer of such Security
for one or more Exchange Securities, the date on which such Exchange
Securities are sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such
Security is eligible for distribution to the public pursuant to Rule
144 under the Securities Act.
"TRUST INDENTURE ACT": The Trust Indenture Act of 1939, as
amended.
"TRUSTEE": The trustee, in its capacity as such, under the
Indenture and, if existent, the trustees under any indenture governing
the Exchange Securities and Private
4
Exchange Securities (if any); the trustee under the Indenture for the
Securities shall initially be Bankers Trust Company.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING": A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. EXCHANGE OFFER
(a) The Company agrees to file at its sole cost and expense
with the SEC no later than the Filing Date, unless prohibited by applicable
law or SEC policy, an offer to exchange (the "EXCHANGE OFFER") any and all of
the Transfer Restricted Securities (other than Private Exchange Securities,
if any) for a like aggregate principal amount of Securities of the Company,
which are substantially identical in all material respects to the Securities
(the "EXCHANGE SECURITIES") and which are entitled to the benefits of the
Indenture or a trust indenture which is substantially identical in all
material respects to the Indenture (other than such changes to such Indenture
or any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the Trust Indenture Act) and which, in either case, has been qualified under
the Trust Indenture Act, except that the Exchange Securities (other than
Private Exchange Securities, if any) shall have been registered pursuant to
an effective Registration Statement under the Securities Act and shall
contain no restrictive legend thereon. The Exchange Offer shall be registered
under the Securities Act on the appropriate form (the "EXCHANGE OFFER
REGISTRATION STATEMENT") and shall comply with all applicable tender offer
rules and regulations under the Exchange Act. The Company agrees to (i) file
(or submit on a confidential basis) the Exchange Offer Registration Statement
with the SEC on or prior to 75 days after the Issue Date; (ii) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to
be declared effective under the Securities Act on or before the Effectiveness
Target Date; (iii) (A) file all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement
to become effective, (B) file, if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Securities Act
and (C) cause all necessary filings in connection with the registration and
qualifications of the Exchange Securities to be made under the blue sky laws
of such jurisdictions as are necessary to permit consummation of the Exchange
Offer; and (iv) use its reasonable best efforts to consummate the Exchange
Offer on or prior to 30 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC. Upon the Exchange
Offer Registration Statement being declared effective, the Company will offer
the Exchange Securities in exchange for surrender of the Securities. If after
such Exchange Offer Registration Statement is declared effective by the SEC,
the Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement shall be deemed not to have become effective for
purposes of this Agreement. Each Holder who participates in the Exchange
Offer will be required to represent that (i) any Exchange Securities received
by it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities, (iii) it is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company or, if it is such an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities
Act to the extent applicable and (iv) it is not acting on behalf of
5
any Person who could not truthfully make the foregoing representations. If
such Holder is not a broker-dealer, such Holder will be required to represent
that it is not engaged in, and does not intend to engage in, the distribution
of the Exchange Securities. If such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Securities
that were acquired as a result of market-making activities or other trading
activities, it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
Company shall have no further obligation to register Transfer Restricted
Securities (other than Private Exchange Securities and other than in respect
of any Exchange Securities as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange
Securities shall be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchaser, 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 is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities received by such broker-dealer
in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the Staff of the SEC
or such positions or policies, in the judgment of the Initial Purchaser,
represent the prevailing views of the Staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers (unless such
Participating Broker-Dealer will be reselling an unsold allotment from the
original sale of the Securities), and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange
Securities.
After the consummation of the Exchange Offer, the Company
shall use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein, in order
to permit such Prospectus to be lawfully delivered by any Participating
Broker-Dealer subject to the prospectus delivery requirements of the Securities
Act and other Persons, if any, with similar prospectus delivery requirements for
such period of time as is necessary to comply with applicable law in connection
with any resale of the Exchange Securities; PROVIDED, HOWEVER, that such period
shall not exceed 180 days after the consummation of the Exchange Offer (or such
longer period if extended pursuant to the last paragraph of Section 5 hereof)
(the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Securities acquired by it and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Company, upon the written request of the Initial
Purchaser simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, shall issue and deliver to the Initial Purchaser in exchange
(the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchaser a
like principal amount of Securities of the Company, that are substantially
identical in all material respects to the Exchange Securities (the "PRIVATE
EXCHANGE SECURITIES") (and which are issued pursuant to the same indenture as
the Exchange Securities) except for the placement of a restrictive legend on
such Private Exchange Securities. The Private Exchange Securities shall bear the
same CUSIP
6
number, if any, ISIN number and Common Code as the Exchange Securities to the
extent permitted by the CUSIP Service Bureau of Standard & Poor's and other
applicable organizations.
Interest on the Exchange Securities and the Private Exchange
Securities will accrue from the last interest payment date on which interest was
paid on the Securities surrendered in exchange therefor or if no interest has
been paid on the Securities from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) 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;
(2) utilize the services of a depositary for the Exchange
Offer with an address in London, England, which may be either the
Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Securities at any
time prior to the close of business, London time, on the last business
day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustees or Authenticating Agent for
cancellation of all Securities so accepted for exchange; and
(3) cause each Trustee promptly to authenticate and
deliver to each Holder of the Securities, Exchange Securities or
Private Exchange Securities, as the case may be, in global form in
aggregate principal amount equal to the respective Securities so
accepted for exchange, as further set forth in the Indenture.
The Exchange Securities and the Private Exchange Securities
may be issued under (i) the Indenture or (ii) indenture substantially identical
in all material respects to the Indenture which in either event shall provide
that (1) the Exchange Securities shall not be subject to the transfer
restrictions set forth in the Indenture and (2) the Private Exchange Securities
shall be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture substantially identical in all material respects to
the Indenture shall provide that the Exchange Securities, Private Exchange
Securities and Securities shall vote and consent together on all matters as one
class and that none of the Exchange Securities, Private Exchange Securities or
Securities will have the right to vote or consent as a separate class on any
matter.
7
(c) If (i) the Company is not permitted to file the
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or SEC policy,
(ii) any Holder of Transfer Restricted Securities that is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act)
notifies the Company at least 20 Business Days prior to the consummation of
the Exchange Offer that (a) applicable law or SEC policy prohibits such
Holder from participating in the Exchange Offer, (b) such Holder may not
resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (c) such Holder is a broker-dealer and holds
Securities acquired directly from the Company or an affiliate of the Company,
(iii) the Exchange Offer is not for any other reason consummated within 210
days after April 10, 2001, or (iv) the Exchange Offer has been completed and
in the opinion of counsel for the Initial Purchaser a Registration Statement
must be filed and a prospectus must be delivered by the Initial Purchaser in
connection with any offering or sale of Transfer Restricted Securities, then
the Company shall promptly deliver written notice thereof (the "SHELF
NOTICE") to the Trustees and in the case of clauses (i) and (iii), all
Holders and, in the case of clauses (ii) and (i) the affected Holders, and
shall at its own cost file a Shelf Registration Statement pursuant to Section
3 hereof.
3. SHELF REGISTRATION STATEMENT
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) The Company will use its reasonable best efforts to:
(A) file with the SEC a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "SHELF REGISTRATION STATEMENT"), within 90 days of
the earliest to occur of clauses (i) through (iv) in Section 2(c) above and
(B) cause the Shelf Registration Statement to be declared effective by the
SEC on or prior to the 150th day after such obligation arises; PROVIDED,
HOWEVER, that if the Company files a Shelf Registration Statement pursuant to
this Section 3(a), it need not abandon the attempt to cause the SEC to
declare the Exchange Offer Registration Statement effective, and it may
satisfy its obligations to register the Securities pursuant to this Agreement
either by complying with Section 2 and/or Section 3. If the Company shall not
have yet filed an Exchange Offer Registration Statement, the Company shall
use its best efforts to file with the SEC the Shelf Registration Statement on
or prior to the Filing Date. The Shelf Registration Statement shall be on
Form F-1 or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings), or may be an amendment to the Exchange Offer Registration
Statement. The Company shall not permit any securities other than the
Transfer Restricted Securities to be included in the Shelf Registration
Statement.
The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended to
ensure that it is available for resales of Securities by the holders of Transfer
Restricted Securities entitled to this benefit and to ensure that such Shelf
Registration Statement conforms and continues to conform with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of
the SEC, as announced from time to time, until the second anniversary of the
Issue Date, subject to
8
extension pursuant to the last paragraph of Section 5 hereof (the
"EFFECTIVENESS PERIOD"), or such shorter period ending when all Transfer
Restricted Securities covered by the Shelf Registration Statement have been
sold in the manner set forth and as contemplated in the Shelf Registration
Statement or when the Transfer Restricted Securities become eligible for
resale pursuant to Rule 144 under the Securities Act without volume
restrictions, if any.
(b) If the Shelf Registration Statement ceases to be
effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof.
(c) The Company shall promptly supplement and amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by
any underwriter of such Transfer Restricted Securities based on a reasonable
belief that such supplement or amendment is required by law.
4. LIQUIDATED DAMAGES
(a) The Company and the Initial Purchaser agree that the
Holders of Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional interest on the
Securities ("LIQUIDATED DAMAGES") under the circumstances and to the extent
set forth below (each of which shall be given independent effect and shall
not be duplicative):
(i) if neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed on or prior to the
Filing Date, then, commencing on the 76th day after the Issue Date,
Liquidated Damages shall accrue on the Securities over and above the
stated interest at a rate of 0.50% per annum for the first 90 days
immediately following the Filing Date, such Liquidated Damages rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period, or part thereof;
(ii) if neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement is declared effective by the
SEC on or prior to the Effectiveness Target Date, then, commencing
on the 181st day after the Issue Date, Liquidated Damages shall
accrue on the Securities included or which should have been included
in such Registration Statement over and above the stated interest at
a rate of 0.50% per annum for the first 90 days immediately
following the Effectiveness Target Date, such Liquidated Damages
rate increasing by an additional 0.50% per annum at the beginning of
each subsequent 90-day period, or part thereof; or
(iii) if the Exchange Offer has not been consummated
within 30 days after the Effectiveness Target Date with respect to
the Exchange Offer Registration
9
Statement, Liquidated Damages shall accrue on the Securities over
and above the stated interest at a rate of 0.50% per annum for the
first 90 days commencing on the 31st day after the Effectiveness
Target Date, such Liquidated Damages rate increasing by an
additional 0.50% per annum at the beginning of each subsequent
90-day period, or part thereof; or
(iv) (A) the Exchange Offer Registration Statement is
filed and declared effective but thereafter ceases to be effective
or fails to be usable for its intended purpose at any time prior to
the time that the Exchange Offer is consummated and is not succeeded
within 5 Business Days by an additional Registration Statement filed
and declared effective or (B) the Shelf Registration Statement is
filed and declared effective but thereafter ceases to be effective
or fails to be usable for its intended purpose at any time during
the Effectiveness Period and is not succeeded within 5 Business Days
by an additional Registration Statement filed and declared
effective, Liquidated Damages shall accrue on the Securities over
and above the stated interest rate at a rate of 0.50% per annum for
the first 90 days commencing on the day the applicable Registration
Statement ceases to be effective or usable for its intended purpose
without being declared effective again within 5 Business Days, such
Liquidated Damages rate increasing by an additional 0.50% per annum
at the beginning of each such subsequent 90-day period, or part
thereof (it being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note that is the subject
of a Shelf Notice is then covered by an effective Shelf Registration
Statement, no Liquidated Damages shall accrue on such Note);
PROVIDED, HOWEVER, that Liquidated Damages may accrue at a maximum rate of 2%
per annum of the principal amount of Securities; and PROVIDED, FURTHER, that (1)
upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement as required hereunder (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement as required hereunder (in the case
of clause (ii) of this Section 4(a)), (3) upon the consummation of the Exchange
Offer (in the case of clause (iii) of this Section 4(a)), and (4) upon the
effectiveness or usability of the Exchange Offer Registration Statement which
had ceased to remain effective or be usable (in the case of clause (iv)(A) of
this Section 4(a)), or upon the effectiveness or usability of the Shelf
Registration Statement which had ceased to remain effective or be usable (in the
case of clause (iv)(B) of this Section 4(a)), Liquidated Damages on the affected
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee and each Paying
Agent within 5 Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages is required to be paid (an
"EVENT DATE"). Any amounts of Liquidated Damages due pursuant to (a)(i),
(a)(ii), (a)(iii) or (a)(iv) of this Section 4 will be payable as set forth
in the Indenture and the Notes semi-annually on each September 30 and March
31 (to the holders of record on September 15 and March 15 immediately
preceding such dates), commencing with the first such date occurring after
any such Liquidated Damages commences to accrue. The amount of Liquidated
Damages will be determined by multiplying the applicable Liquidated Damages
rate by the principal amount of the affected Securities of such Holders,
multiplied by a fraction, the numerator of which is the number of days such
Liquidated Damages rate was applicable
10
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months and, in the case of a partial month, the actual number
of days elapsed), and the denominator of which is 360. The Company shall
notify the Trustee within 5 Business Days of the cessation of any requirement
to pay Liquidated Damages hereunder.
(c) Upon both commencement and completion of the Exchange
Offer, the Company will provide notice thereof (if and so long as the
Securities are listed on the Luxembourg Stock Exchange and the rules of such
stock exchange shall so require) by publication in a newspaper having a
general circulation in Luxembourg (which is expected to be the LUXEMBURGER
WORT).
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registration(s) to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by Sections
2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the Transfer
Restricted Securities covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least 5 Business Days prior to such filing).
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period or until consummation of the Exchange Offer,
as the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus. Notwithstanding the foregoing,
if the Board of Directors of the Company determines in good faith that it is
in the best interests of the Company not to disclose the existence of or
facts surrounding any proposed or
11
pending material event or transaction involving the Company or its
subsidiaries, the Company may (i) in the event a Shelf Registration Statement
has been filed, allow the Shelf Registration Statement to fail to be
effective or usable as a result of such nondisclosure for up to 60 days
during the Effectiveness Period, but in no event for any period in excess of
30 consecutive days, and (ii) in the event the Exchange Offer is consummated,
allow the Exchange Offer Registration Statement to fail to be effective or
usable as a result of such non-disclosure for up to 15 days during the
Applicable Period. The Company shall be deemed not to have used its best
efforts to keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in selling
Holders of the Transfer Restricted Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being
able to sell such Transfer Restricted Securities or such Exchange Securities
during that period unless such action is required by applicable law or unless
the Company complies with this Agreement, including without limitation, the
provisions of paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, notify the
Holders of Transfer Restricted Securities, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within 5 Business Days),
and, if requested by such Persons, confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated
by reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection
with sales of the Transfer Restricted Securities or resales of Exchange
Securities by Participating Broker-Dealers, the representations and
warranties of the Company contained in any agreement (including any
underwriting agreement), contemplated by Section 5(n) hereof cease to be true
and correct, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Transfer Restricted
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or omit to state
any
12
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it
will not 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 light of the circumstances under which they were made,
not misleading, and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities or the Exchange Securities for sale in any
jurisdiction, and, if any such order is issued, to use its best efforts to
obtain the withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 and if requested by the managing underwriter or underwriters (if
any), or the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold in connection with an underwritten
offering or any Participating Broker-Dealer, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them determines is
necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement.
(f) If (l) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, furnish to
each selling Holder of Transfer Restricted Securities and to each such
Participating Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (l) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, deliver to
each Holder of Transfer Restricted Securities, or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Company, as many copies of
the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Transfer Restricted Securities covered by, or the sale
13
by Participating Broker-Dealers of the Exchange Securities pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or Exchange Securities or any delivery of a Prospectus contained
in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, use its reasonable best efforts to register or qualify (and to
cooperate with selling Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities) for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; PROVIDED, HOWEVER, that where
Exchange Securities held by Participating Broker-Dealers or Transfer
Restricted Securities are offered other than through an underwritten
offering, the Company agrees to cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h); keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Securities held by Participating Broker-Dealers
or the Transfer Restricted Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in any such jurisdiction where it is not then so
subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit with the
Common Depositary; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement and the Exchange
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the selling Holders
thereof or the underwriter or underwriters, if any, to dispose of such
Transfer Restricted Securities or Exchange Securities, except as may be
required solely as a consequence of the nature of a selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
14
(k) If (l) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof,
as promptly as practicable prepare and (subject to Section 5(b) hereof) file
with the SEC, at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Transfer Restricted Securities
being sold thereunder or to the purchasers of the Exchange Securities to whom
such Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Unless the rating in effect for the Securities is
equally applicable and in effect for the Exchange Securities and the Transfer
Restricted Securities, use its best efforts to cause the Transfer Restricted
Securities covered by a Registration Statement or the Exchange Securities, as
the case may be, to be rated with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, provide a CUSIP
number, ISIN Code and Common Code for the Transfer Restricted Securities or
Exchange Securities, as the case may be.
(n) In connection with any underwritten offering of
Transfer Restricted Securities pursuant to a Shelf Registration Statement,
enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Securities and take all such
other actions as are reasonably requested by the managing underwriter or
underwriters in order to facilitate the registration or the disposition of
such Transfer Restricted Securities and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters with
respect to the business of the Company and its subsidiaries (including any
acquired business, properties or entity, if applicable) and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar
to the Securities, and confirm the same in writing if and when requested;
(ii) obtain the written opinion of counsel to the Company and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings
of debt similar to the Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "comfort"
letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters 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 or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings of debt similar to the
15
Securities and such other matters as reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section, including, without limitation, the Holders of Transfer Restricted
Securities and the underwriters. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required
thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, make
available for inspection by any selling Holder of such Transfer Restricted
Securities being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of Transfer
Restricted Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-Dealer,
as the case may be, or underwriter (collectively, the "INSPECTORS"), at the
offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement. Records
that the Company determines, in good faith, to be confidential and any
Records that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, (iii) disclosure of
such information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder or (iv) the information
in such Records has been made generally available to the public. Each selling
Holder of such Transfer Restricted Securities and each such Participating
Broker-Dealer will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to the
public. Each selling Holder of such Transfer Restricted Securities and each
such Participating Broker-Dealer or underwriter, as the case may be, will be
required further to agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company at its sole expense to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
(p) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Securities, as the case may be, and cause the
applicable Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the Trust
16
Indenture Act not later than the effective date of the first Registration
Statement relating to the Transfer Restricted Securities; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Transfer Restricted Securities, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; furnish the trustee
with an officer's certificate certifying that such indenture has been so
qualified under the Trust Indenture Act and that the Transfer Restricted
Securities are the subject of a Registration Statement; and execute, and use
its reasonable best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified
in a timely manner.
Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Transfer Restricted Securities by Holders
to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be, the Company shall ▇▇▇▇, or cause to be marked, on such
Transfer Restricted Securities that such Transfer Restricted Securities are
being cancelled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall such Transfer
Restricted Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Transfer Restricted Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the "NASD").
(s) Use its best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Securities and/or
Transfer Restricted Securities covered by a Registration Statement
contemplated hereby.
(t) Make an application to list the Exchange Securities on
the Luxembourg Stock Exchange and to use its best efforts to have the
Exchange Securities admitted to trading on the Luxembourg Stock Exchange as
promptly as practicable and thereafter maintained such listing.
The Company may require each seller of Transfer Restricted
Securities as to which any Shelf Registration Statement is being effected to (i)
furnish to the Company such information regarding such seller and the
distribution of such Transfer Restricted Securities and (ii) make such
representations, in each case as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Transfer Restricted
Securities of any seller who unreasonably fails to furnish such information or
make such representations
17
within a reasonable time after receiving such request. Each seller as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such seller not
materially misleading.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, that, upon actual receipt of any notice from
the Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus or Exchange Securities to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such Holder's
or Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "ADVICE") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement or Exchange Securities to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer Registration Statement or a Shelf
Registration Statement is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD in connection with an underwritten offering, (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with
Blue Sky qualifications of the Transfer Restricted Securities or Exchange
Securities and determination of the eligibility of the Transfer Restricted
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the holders of Transfer Restricted Securities are
located, in the case of the Exchange Securities, or (y) as provided in
Section 5(h) hereof, in the case of Transfer Restricted Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period)), and (C) all expenses and fees in connection with the
obtaining of any approval from any relevant authority in Sweden; (ii)
printing expenses, including, without limitation, the printing of
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
any Registration Statement or by any Participating Broker-Dealer, as the case
may be, (iii) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Transfer Restricted
Securities (subject to the provisions of Section 6(b) hereof), (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold
18
comfort" letters required by or incident to such performance), (v) rating
agency fees, if any, and any fees associated with making the Exchange
Securities eligible for trading through Euroclear and Clearstream Banking,
(vi) Securities Act liability insurance, if the Company desires such
insurance, (vii) reasonable fees and expenses of all other Persons retained
by the Company, (viii) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the
Company performing legal or accounting duties), (ix) the expense of any
annual audit, (x) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange,
including, without limitation, the Luxembourg Stock Exchange, and (xi) the
expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to comply
with this Agreement.
(b) The Company shall reimburse the Holders of the Transfer
Restricted Securities being registered in a Shelf Registration Statement for
the fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
Registration Statement (which counsel shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
unless otherwise affirmatively stated by the Holders) and other out-of-pocket
expenses of such Holders of Transfer Restricted Securities incurred in
connection with the registration and sale of the Transfer Restricted
Securities pursuant to a Shelf Registration Statement or the exchange of
Transfer Restricted Securities pursuant to the Exchange Offer.
7. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each
Holder of Transfer Restricted Securities offered pursuant to a Shelf
Registration Statement, each Participating Broker-Dealer selling Exchange
Securities during the Applicable Period and the Initial Purchaser, and their
respective affiliates, their respective officers, directors, employees,
representatives and agents, and each Person, if any, who controls any such
Person within the meaning of the Securities Act or the Exchange Act (each a
"PARTICIPANT"), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales
of Transfer Restricted Securities and Exchange Securities as the case may be)
to which any such Holder, Broker-Dealer or Initial Purchaser may become
subject, whether commenced or threatened under the Securities Act, the
Exchange Act, any other supra-national, federal, regional, local and foreign
statutory law or regulation at common law or otherwise, insofar a such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or in any blue sky
application or other document prepared or executed by the Company (or based
upon any written information furnished by the Company) specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities under
the securities laws of any state or other jurisdiction (such application,
document or information being hereinafter called a "BLUE SKY APPLICATION"),
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and shall reimburse each Participant promptly upon
demand for any legal or other costs, charges and expenses reasonably incurred
by that Participant in connection with investigating or
19
defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action
as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from the
Registration Statement or Prospectus, or in any such amendment or supplement,
or in any Blue Sky Application in reliance upon and in conformity with the
written information furnished to the Company by or on behalf of any
Participant specifically for inclusion therein; and PROVIDED, FURTHER, that
with respect to any such untrue statement in or omission from any preliminary
prospectus the indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of any such Participant to the extent that the sale to
the Person asserting any such loss, claim, damage, liability or action was an
initial resale by such Participant and any such loss, claim, damage,
liability or action of or with respect to such Participant results from the
fact that both (A) to the extent required by applicable law, a copy of the
Prospectus was not sent or given to such Person at or prior to the written
confirmation of the sale of such securities to such Person and (B) the untrue
statement in or omission from such preliminary prospectus was corrected in
the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company with Section 5(g) of this
Agreement.
(b) Each Holder of Transfer Restricted Securities offered
pursuant to a Shelf-Registration Statement, each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period and the Initial
Purchaser (each a "PARTICIPANT INDEMNIFYING PARTY") severally and not
jointly, shall indemnify and hold harmless the Company, its affiliates, their
respective officers, directors, employees, representatives and agents, and
each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 7(b) and Section 7(d) as the Company), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
Person may become subject, whether commenced or threatened under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained (A) in any
preliminary prospectus or the Registration Statement or Prospectus, or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or (ii)
the omission or alleged omission to state therein, a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with the written information furnished to the Company by
that Participant Indemnifying Party specifically for inclusion therein, and
shall reimburse the Company for any legal or other costs, charges and
expenses reasonably incurred by the Company in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action
as such expenses are incurred.
20
(c) Promptly after the receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party pursuant to Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section
7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and, PROVIDED,
FURTHER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise
than under this Section 7. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there
may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in sections 7(a) and 7(b)
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless
21
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceedings.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Participants on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Participants on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Participants on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities (before deducting expenses) received by
or on behalf of the Company bear on the one hand, and the total underwriting
discounts and commissions received by the Initial Purchaser with respect to
the Securities purchased under the Purchase Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under
the Purchase Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to the Company or information supplied by the Company on the one hand
or the Participants on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Participants
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by PRO RATA allocation (even if the
Participants were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Participant shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it were resold exceeds the amount
of any damages which such Purchaser has otherwise paid or become liable to
pay by reason of any 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Participant's obligations to contribute as provided in
this Section 7(d) are several in proportion to their respective purchase
obligations and not joint.
The obligations of the Company and any Participant
Indemnifying Party in this Section 7 are in addition to any other liability that
the Company or any Participant Indemnifying Party, as the case may be, may
otherwise have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
22
8. RULE 144A
The Company covenants to furnish to the holders of the
Securities and to prospective investors, upon the request of such holder, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Securities are not freely transferable under the
Securities Act.
9. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company represents,
warrants and agrees that it has not, as of the date hereof, nor will it,
after the date of this Agreement, enter into any agreement with respect to
any of its securities that is inconsistent with the rights granted to the
Holders of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company will not enter into any
agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to the Exchange Offer
Registration Statement or the Shelf Registration Statement.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES.
The Company shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely affect
the ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, otherwise
than with the prior written consent of (A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities with respect to the Transfer Restricted Securities and
(B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Securities held by all
Participating Broker-Dealers with respect to Exchange Securities; PROVIDED,
HOWEVER, that Section 7 and this Section 10(c) may not be amended, modified
or supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person
23
who was a Holder or Participating Broker-Dealer of Transfer Restricted
Securities or Exchange Securities, as the case may be, disposed of pursuant
to any Registration Statement). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of the Transfer Restricted
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Transfer Restricted Securities may
be given by Holders of at least a majority in aggregate principal amount of
the Transfer Restricted Securities being sold by such Holders pursuant to
such Registration Statement; PROVIDED, HOWEVER, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications
(including, without limitation, any notices or other communications to either
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted Securities
or any Participating Broker-Dealer, at the most current address of
such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the applicable Indenture,
with a copy in like manner to the Initial Purchaser as follows:
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchaser, at the addresses
specified in Section 10(d)(1);
24
(3) if to the Company, as follows:
Preem Holdings AB (publ)
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 44 020 7726 9610
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Initial Purchaser.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to each Trustee at
the address and in the manner specified in each Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto and the Holders; PROVIDED, HOWEVER, that this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign holds Transfer
Restricted Securities.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(i) REMEDIES. In the event of a breach by the Company or by
any Holder of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Company of its obligations under
Sections 2 or 3 hereof for which liquidated damages have been paid pursuant
to Section 4
25
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(j) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; WAIVER. To the fullest extent permitted by applicable law, the
Company irrevocably submits to the non-exclusive jurisdiction of any federal
or state court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding
based on or arising under this Agreement, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation (the "Authorized Agent"), for the later of a period
of ten years or until such time as no Notes are outstanding as its authorized
agent upon whom process may be served in any such suit or proceeding. The
Company represents that it has notified the Authorized Agent of such
designation and appointment and that the Authorized Agent has accepted the
same in writing. The Company hereby irrevocably authorizes and directs its
Authorized Agent to accept such service. The Company further agrees that
service of process upon its Authorized Agent and written notice of said
service to the Company mailed by first class mail or delivered to its
Authorized Agent shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner permitted
by law. The Company agrees that a final action in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. Notwithstanding the foregoing, any
action against the Company arising out of or based on this Agreement or the
transactions contemplated hereby may also be instituted by the Initial
Purchaser, their officers and employees or any person who controls the
Initial Purchaser within the meaning of the Securities Act in any competent
court in the Kingdom of Sweden, and the Company expressly accepts the
jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which it may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Agreement or the transactions
contemplated hereby.
The provisions of this Section 10(j) are intended to be
effective upon the execution of this Agreement without any further action by the
Company or the Initial Purchaser and the introduction of a true copy of this
Agreement into evidence shall be conclusive and final evidence as to such
matters.
(k) CURRENCY INDEMNITY. The Company shall indemnify each
Participant against any loss incurred by it as a result of any judgment or
order being given or made and expressed and paid in a currency (the "Judgment
Currency") other than Euros and as a result of any variation as between (i)
the rate of exchange at which the Euro amount is converted into the
26
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in
New York,
New York at which such Participant on the date
of payment of such judgment or order is able to purchase Euros with the
amount of the Judgment Currency actually received by such Participant. If the
Euros so purchased are greater than the amount originally due to such
Participant hereunder, such Participant agrees to pay to the Company an
amount equal to the excess of the Euros so purchased over the amount
originally due to such Participant hereunder. The foregoing shall constitute
a separate and independent obligation of the Company and the Participant, as
the case may be, and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "spot rate of exchange"
shall include any premiums and costs of exchange payable in connection with
the purchase of, or conversion into, Euros.
(l) SEVERABILITY. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts
to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(m) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its "affiliates" (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(n) THIRD PARTY BENEFICIARIES. Holders of Transfer
Restricted Securities and Participating Broker-Dealers are intended third
party beneficiaries of this Agreement, and this Agreement may be enforced by
such Persons.
(o) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement and each Indenture, is intended by the parties as a final
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and any
and all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda
between the Initial Purchaser on the one hand and the Company on the other,
or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and replaced
hereby.
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PREEM HOLDINGS AB (PUBL)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name:
Title:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name:
Title:
DEUTSCHE BANK AG LONDON
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
AUTHORIZED REPRESENTATIVE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
AUTHORIZED REPRESENTATIVE