Exhibit 4.2
KANSAS CITY SOUTHERN de MEXICO, S.A. de C.V.
U.S. $165,000,000 7 3/8% Senior Notes Due 2014
REGISTRATION RIGHTS AGREEMENT
May 16, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BBVA Securities, Inc.
BMO Capital Markets Corp.
Scotia Capital (USA) Inc.
as Placement Agents
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Kansas City Southern de Mexico, S.A. de C.V., a sociedad anonima de capital
variable organized under the laws of the United Mexican States (the "Company"),
proposes to issue and sell to Banc of America Securities LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co., BBVA Securities Inc., BMO Capital Markets Corp. and Scotia Capital (USA)
Inc. (the "Placement Agents") U.S.$165,000,000 principal amount of its 7?%
Senior Notes Due 2014 (the "Securities"), upon the terms set forth in the
Placement Agreement between the Company and the Placement Agents dated May 14,
2007 (the "Placement Agreement") relating to the initial placement (the "Initial
Placement") of the Securities. To induce the Placement Agents to enter into the
Placement Agreement and to satisfy a condition to your obligations thereunder,
the Company agrees with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Placement Agents) (each a "Holder"
and, collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act and
the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date of the first issuance of the Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include the Placement
Agents) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for New Securities.
"Final Memorandum" shall mean the offering memorandum, dated May 14, 2007,
relating to the Securities, including any and all exhibits and appendices
thereto and any information incorporated by reference therein as of such date.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of May 16, 2007, among the Company, U.S. Bank National Association, as trustee
and paying agent, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of the
aggregate principal amount of outstanding Securities registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment bank or investment banks
and manager or managers that administer an underwritten offering, if any, under
a Registration Statement.
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"NASD Rules" shall mean the Conduct Rules and the By-Laws of the National
Association of Securities Dealers, Inc.
"New Securities" shall mean debt securities of the Company identical in all
material respects to the Securities (except that the transfer restrictions shall
be modified or eliminated, as appropriate) to be issued under the New Securities
Indenture.
"New Securities Indenture" shall mean an indenture between the Company and
the New Securities Trustee, identical in all material respects to the Indenture
(except that the transfer restrictions shall be modified or eliminated, as
appropriate), which may be the Indenture if in the terms thereof appropriate
provision is made for the New Securities.
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Placement Agents, as trustee with respect to the New
Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto, including
any and all exhibits thereto and any information incorporated by reference
therein.
"Registered Exchange Offer" shall mean the proposed offer of the Company to
issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registrable Securities" shall mean (i) Securities other than those that
have been (A) registered under a Registration Statement and exchanged or
otherwise disposed of in accordance therewith or (B) distributed to the public
pursuant to Rule 144 under the Act or any successor rule or regulation thereto
that may be adopted by the Commission and (ii) any New Securities, the resale of
which by the Holder thereof requires compliance with the prospectus delivery
requirements of the Act.
"Registration Default Damages" shall have the meaning set forth in Section
8 hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section
3 hereof.
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"Shelf Registration Period" has the meaning set forth in Section 3(b)(ii)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the Commission, the
Company shall as promptly as practicable prepare and file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act and to
complete the Registered Exchange Offer within 270 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for New Securities (assuming that such Holder is not an
Affiliate of the Company, acquires the New Securities in the ordinary course of
such Holder's business, has no arrangements with any person to participate in
the distribution of the New Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such New Securities from and after their receipt without any limitations
or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20
Business Days and use its reasonable best efforts to keep the Registered
Exchange Offer open for not more than 40 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
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(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required, under the Act to ensure that it is available for
sales of New Securities by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan in New York City, which
may be the Trustee, the New Securities Trustee or an Affiliate of either of
them;
(v) permit Holders to withdraw tendered Securities (in accordance with
the procedures set forth in the Exchange Offer Registration Statement) at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating that
the Company is conducting the Registered Exchange Offer in reliance on the
position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5,
1991); and (B) including a representation that the Company has not entered
into any arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding with
any person to participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for cancellation
in accordance with Section 4(s) all Securities so accepted for exchange;
and
(iii) cause the New Securities Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (i) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters
and (ii) must comply with the registration and prospectus delivery requirements
of the Act in connection with
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any secondary resale transaction, which must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the Act if
the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of its
Affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that:
(i) any New Securities to be received by such Holder will be acquired
in the ordinary course of business;
(ii) at the time of the consummation of the Registered Exchange Offer,
such Holder will have no arrangement or understanding with any person to
participate in the distribution of the Securities or the New Securities
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company;
and to make such other representations as may be necessary under applicable
Commission rules, regulations or interpretations to render the use of the Form
S-4 or other appropriate form under the Act available.
(f) If, in the reasonable opinion of the Placement Agents, it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of the Placement Agents, the Company shall issue and deliver to the
Placement Agents or the person purchasing New Securities registered under a
Shelf Registration Statement as contemplated by Section 3 hereof from the
Placement Agents, in exchange for such Securities, a like principal amount of
New Securities. The Company shall use its reasonable best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such New Securities as
for New Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Registered Exchange Offer is not consummated within 270 days of the date
hereof; (iii) any Holder (other than the Placement Agents) is not eligible to
participate in the Registered Exchange Offer other than by reason of such Holder
being an Affiliate of the Company; (iv) based on their reasonable opinion, the
Placement Agents so requests with respect to Securities that are not eligible to
be exchanged for New Securities in the Registered Exchange Offer that are held
by them following consummation of the Registered Exchange Offer, such request
being in writing and delivered to the Company; or (v) in the case that the
Placement Agents participate in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, in their reasonable opinion the
Placement Agents do not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that (A) the requirement that the Placement Agents deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely tradeable" and
(B) the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of New
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Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company shall effect a Shelf Registration Statement in accordance with
subsection (b) below.
(b) (i) The Company shall as promptly as practicable file with the
Commission and shall use its reasonable best efforts to cause to be declared
effective under the Act within 270 days after the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
(other than the Placement Agents) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder (it being understood that Holders who would have received freely
transferable Securities pursuant to the Registered Exchange Offer had they not
(A) failed to duly tender their Securities for exchange pursuant to the
Registered Exchange Offer (other than the Placement Agents in connection with
Securities held by them constituting any portion of an unsold allotment), or
otherwise failed to comply with the requirements of the Registered Exchange
Offer as provided in Section 2 hereof or (B) failed to furnish to the Company
such information as the Company may request in accordance with Section 4(o) in
connection with a Shelf Registration Statement, shall not retain any rights
under this Agreement, including any right to have Securities owned by them
included in any Shelf Registration Statement); and provided further that, with
respect to New Securities received by the Placement Agents in exchange for
Securities constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Item 507 or 508 of Regulation S-K of the Act, as
applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(ii) The Company shall, except as permitted under Section 4(k)(ii),
keep the Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period (the "Shelf
Registration Period") from the date the Shelf Registration Statement is
declared effective by the Commission until (A) the second anniversary
thereof or (B) the earlier date upon which all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement.
(iii) The Company shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act; and (B) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were
made) not misleading.
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4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to the Placement Agents and to counsel for the Majority
Holders, not less than five Business Days prior to the filing thereof with
the Commission, a copy of any Exchange Offer Registration Statement and any
Shelf Registration Statement, and each amendment thereof and each amendment
or supplement, if any, to the Prospectus included therein (including all
documents incorporated by reference therein after the initial filing) and
shall use its reasonable best efforts to reflect in each such document,
when so filed with the Commission, such comments as the Placement Agents
may reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing
page of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the Exchange
Offer Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by the Placement Agents, include the information
required by Item 507 or 508 of Regulation S-K, as applicable, in the
Prospectus contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names
of the Holders that propose to sell Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) The Company shall advise the Placement Agents, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company a telephone or facsimile number and address for notices, and, if
requested by any Placement Agent or any such Holder or Exchanging Dealer, shall
confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such suspension):
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(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or supplement
to the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, they (A)
do not contain any untrue statement of a material fact and (B) do not omit
to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of any Registration Statement
or the qualification of the securities therein for sale in any jurisdiction and,
if issued, to obtain as soon as possible the withdrawal thereof.
(e) The Company shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all
material incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including the Preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
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(h) The Company shall promptly deliver to the Placement Agents, each
Exchanging Dealer and each other person required to deliver a Prospectus during
the Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by the Placement Agents, any Exchanging Dealer and any such other person
that may be required to deliver a Prospectus following the Registered Exchange
Offer in connection with the offering and sale of the New Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall arrange, if
necessary, for the qualification of the Securities or the New Securities for
sale under the laws of such jurisdictions as any Holder shall reasonably request
and shall maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits in any such jurisdiction where it is
not then so subject.
(j) The Company shall cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing New Securities or
Securities to be issued or sold pursuant to any Registration Statement free of
any restrictive legends and in such denominations and registered in such names
as Holders may request at least two Business Days prior to such sale of
Securities or New Securities.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2 shall be extended by the number of days from and including the date of
the giving of a notice of suspension pursuant to Section 4(c) to and including
the date when the Placement Agents, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(ii) Upon the happening of any event of the kind described in
subsection (c)(v) hereof, or the determination by the Company that, in its
reasonable judgment and upon written advice of counsel, the continued
effectiveness and use of the Shelf Registration Statement would require the
disclosure of confidential information or interfere with any financing,
acquisition, reorganization or other material transaction involving the
Company, such Holder will forthwith discontinue disposition of Securities
or New Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by subsection(f) hereof (or a notice from the Company that
such Holder may resume use of the existing Prospectus), and, if so directed
by the Company, such Holder will deliver to the Company (at the
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Company's expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Securities current at the time of receipt of such notice. If the Company
shall give any such notice to suspend the disposition of Securities
pursuant to a Registration Statement, the Company shall extend the period
during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date
when the Holders shall have (A) received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (B) a notice
permitting use of the existing Prospectus. The Company may give any such
notice only twice during any 365-day period and any such suspensions may
not exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365-day period.
(l) Not later than the effective date of any Registration Statement, the
Company shall provide a CUSIP number for the Securities or the New Securities,
as the case may be, registered under such Registration Statement and provide the
Trustee with printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations of
the Commission and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Act as soon
as practicable after the effective date of the applicable Registration Statement
and in any event no later than 90 days after the end of a 12-month period (or
180 days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
applicable Registration Statement.
(n) The Company shall cause the New Securities Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement. The Company may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into customary agreements (including, if requested, an underwriting
agreement in customary form) and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Securities,
and in connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder, any underwriter participating in
any disposition pursuant to such
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Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and
other records and pertinent corporate documents of the Company and its
subsidiaries; provided, however, that, if any such records, documents or
other information are related to pending or proposed acquisitions or
dispositions, or otherwise related to matters reasonably considered by the
Company to constitute sensitive or proprietary information, the Company
need not provide such records, documents or information unless the
foregoing parties enter into a confidentiality agreement in customary form
and reasonably acceptable to such parties and the Company;
(ii) cause the Company's officers, directors, employees, accountants
and auditors to supply all relevant information reasonably requested by the
Holders or any such underwriter, legal counsel, accountant or agent in
connection with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that such information may
not be used for any other purpose than due diligence and provided further,
however, that any information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter, legal
counsel, accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not
limited to, those set forth in the Placement Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain comfort letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Securities registered
thereunder and the underwriters, if any, provided that such letters need
not be addressed to any Holder to whom, in the reasonable opinion of the
Company's independent public accountants, addressing such letter is not
permissible under applicable accounting standards), in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings;
12
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company; and
(vii) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (A) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (B) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (i) the effectiveness of such Registration Statement and
each post-effective amendment thereto and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Placement Agents,
and any legal counsel, accountant or other agent retained by the Placement
Agents, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries; provided,
however, that, if any such records, documents or other information related
to pending or proposed acquisitions or dispositions, or otherwise related
to matters reasonably acceptable to such parties and the Company to
constitute sensitive or proprietary information, the Company need not
provide such records, documents or information unless the foregoing parties
enter into a confidentiality agreement in customary form and reasonably
acceptable to such parties and the Company;
(ii) cause the Company's officers, directors, employees, accountants
and auditors to supply all relevant information reasonably requested by the
Placement Agents or any such attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that such information may not be
used for any purpose other than due diligence and provided, further,
however, that any information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by the Placement Agents or any such attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Placement
Agents, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Placement Agreement;
13
(iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Placement Agents and their counsel,
addressed to the Placement Agents, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by the Placement Agents or their
counsel;
(v) obtain comfort letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Registration
Statement), addressed to the Placement Agents, in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, or if requested by the
Placement Agents or their counsel in lieu of a comfort letter, an
agreed-upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by the Placement Agents or their counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Placement Agents or their counsel, including those to
evidence compliance with Section 4(k) and with conditions customarily
contained in underwriting agreements;
provided, however that the Company will be required to perform the
foregoing actions set forth in clauses (i) through (vi) only upon the reasonable
request by the Placement Agents to the Company or the reasonable request in
writing to the Company by one or more broker-dealers who certify to the
Placement Agents and the Company in writing that they anticipate they will
receive New Securities for their own account in the Exchange Offer for
Securities that were acquired by such broker-dealer as a result of market-making
or other trading activities, and, based on the position of the Commission as
described in Section 2(e), will be required to satisfy the prospectus delivery
obligation under the Act in connection with the resale of such New Securities;
and provided further, that the Company will not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration Statement
for a period exceeding the Exchange Offer Registration Period, and such
broker-dealers shall not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with resales
contemplated in this subsection (r); and provided, further, that the Company
will be obligated to deal only with one entity representing such broker-dealers,
which shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, unless it elects not to act as
such representative, and to pay the reasonable fees and expenses of only one
counsel representing such broker-dealers, which shall be the counsel to the
Placement Agents, unless such counsel elects not to so act, and to cause to be
delivered only one, if any, comfort letter with respect to the Prospectus in the
form existing on the expiration of the Exchange Offer and with respect to each
subsequent amendment or supplement, if any, effected during the period specified
above.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
14
(s) If a Registered Exchange Offer is to be consummated, upon delivery of
the Securities by Holders to the Company (or to such other person as directed by
the Company) in exchange for the New Securities, the Company shall ▇▇▇▇, or
cause to be marked, on the Securities so exchanged that such Securities are
being cancelled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(t) The Company shall use its best reasonable efforts to confirm that the
ratings issued to the Securities prior to their initial sale will apply to the
Securities or the New Securities, as the case may be, covered by a Registration
Statement.
(u) In the event that any Broker-Dealer shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the NASD Rules) thereof, whether as
a Holder of such Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, the Company shall assist
such Broker-Dealer in complying with the NASD Rules.
(v) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel (which
shall initially be Shearman & Sterling LLP, but which may, with the written
consent of the Placement Agents, be another nationally recognized law firm
experienced in securities matters designated by the Majority Holders) to act as
counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Placement Agents for
the reasonable fees and disbursements of counsel acting in connection therewith.
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Securities
pursuant to the Shelf Registration Statement.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Holder of Securities or New Securities, as the case may
be, covered by any Registration Statement, the Placement Agents and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer, the directors, officers, employees and agents of each such
Holder, the Placement Agents or Exchanging Dealer and each person who controls
any such Holder, the Placement Agents or Exchanging Dealer within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment
thereof, including all documents incorporated by reference therein or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make
15
the statements therein (in the case of any preliminary Prospectus or the
Prospectus, in the light of the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein; provided further, however,
that with respect to any untrue statement or omission of a material fact made in
any preliminary Prospectus, the indemnity agreement contained in this Section
shall not inure to the benefit of any Holder from whom the person asserting any
such loss, claim, damage or liability purchased the Securities or New
Securities, as the case may be, to the extent that any such loss, claim, damage
or liability of such Holder occurs under the circumstance where it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (i) the untrue statement or omission of a material fact contained
in the preliminary Prospectus was corrected in the Prospectus, (ii) the Company
had previously furnished copies of the Prospectus to such Holder prior to the
written confirmation of the sale of such Securities or New Securities and (iii)
such loss, claim, damage or liability results from the fact that there was not
sent or given to such person at or prior to the written confirmation of the sale
of such Securities or New Securities, as the case may be, to such person, a copy
of the Prospectus; and provided further, however, that the Company shall not be
liable to an indemnified party with respect to any Prospectus or Registration
Statement or any amendment or supplement to any thereof to the extent that any
such loss, claim, damage, liability or action of such indemnified party arises
out of, or is based upon, (i) the use of any Registration Statement during a
period when a stop order has been issued by the Commission in respect thereof or
(ii) the use of the Prospectus during a period when the use of the Prospectus
has been suspended in accordance with the instructions of the Company because of
the discovery of any untrue statement or omission of a material fact therein,
provided that all Holders of Securities or New Securities received prior written
notice of such stop order or suspension and such indemnified party, knowingly
and voluntarily continued to use such Prospectus or Registration Statement. This
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
The Company also agrees to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if
any, of Securities or New Securities, as the case may be, registered under a
Shelf Registration Statement, their directors, officers, employees or agents and
each person who controls such underwriter on substantially the same basis as
that of the indemnification of the Placement Agents and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including the Placement Agents, but only if such Placement Agent is a Holder,
in such capacity) severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs such
Registration Statement and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
reference to written information
16
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such
17
Losses; provided, however, that in no case shall the Placement Agents be
responsible, in the aggregate, for any amount in excess of the purchase discount
or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, nor
shall any Holder be responsible, in the aggregate for any amount in excess of
the amount by which the total price at which Registrable Securities were sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission which resulted in such Losses, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the securities purchased by such underwriter under
the Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the sum of (i) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum and
(ii) the total amount of additional interest which the Company was not required
to pay as a result of registering the securities covered by the Registration
Statement which resulted in such Losses. Benefits received by the Placement
Agents shall be deemed to be equal to the total purchase discounts and
commissions, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
this Section hereof, and will survive the sale by a Holder of securities covered
by a Registration Statement.
18
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant to any
Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Registration Defaults. If any of the following events shall occur, then
the Company shall pay liquidated damages (the "Registration Default Damages") to
the Holders of Securities in respect of the Securities as follows:
(a) if on or prior to the 270th day of following the Closing Date,
neither the Registered Exchange Offer has been completed nor the Shelf
Registration Statement has been declared effective, then Registration
Default Damages shall accrue on the Registrable Securities at a rate of
.25% per annum and shall be payable in accordance with the interest payment
provisions of the Securities; or
(b) if any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is
required to be effective under this Agreement, then commencing on the day
the Registration Statement ceases to be effective, Registration Default
Damages shall accrue on the Registrable Securities at a rate of .25% per
annum and shall be payable in accordance with the interest payment
provisions of the Securities;
provided, however, that (i) upon completion of the Registered Exchange Offer or
the effectiveness of the Shelf Registration Statement (in the case of paragraph
(a) above), or (ii) upon the effectiveness of the Registration Statement which
had ceased to remain effective (in the case of paragraph (b) above),
Registration Default Damages shall cease to accrue.
9. No Inconsistent Agreements. The Company has not entered into, and agrees
not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights of the
Placement Agents hereunder, the Company shall obtain the written consent of the
Placement Agents against which such amendment, qualification, supplement, waiver
or consent is to be effective; provided, further, that no amendment,
qualification, supplement, waiver or consent with respect to Section 8 hereof
shall be effective as against any Holder of Registered
19
Securities unless consented to in writing by such Holder; and provided further
that the provisions of this Section 10 may not be amended, qualified, modified
or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
the Placement Agents and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 11, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture;
(b) if to the Placement Agents, initially at the address or addresses
set forth in the Placement Agreement; and
(c) if to the Company, initially at its address set forth in the
Placement Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Placement Agents or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all
rights provided to it herein, in the Indenture or in the Placement Agreement or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive in any action for specific performance the defense that a
remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
20
14. Jurisdiction. Each of the parties hereto agrees that any suit, action
or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court in The
City of New York and County of New York, and waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the jurisdiction of such courts in any suit, action or
proceeding. The Company hereby appoints CT Corporation System, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
herein which may be instituted in any State or U.S. federal court in The City of
New York and County of New York, by any Holder or the Placement Agents, the
directors, officers, employees and agents of any Holder or the Placement Agents,
or by any person who controls any Holder or the Placement Agents, and expressly
accepts the jurisdiction of any such court in respect of any such suit, action
or proceeding. The Company hereby represents and warrants that the Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent shall be deemed, in every respect, effective service of process
upon the Company. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect so long as any of the Securities shall be outstanding. To
the extent that the Company may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such immunity in
respect of this Agreement, to the fullest extent permitted by law.
15. Currency. Each reference in this Agreement to U.S. dollars (the
"relevant currency") is of the essence. To the fullest extent permitted by law,
the obligation of the Company in respect of any amount due under this Agreement
will, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
relevant currency that the party entitled to receive such payment may, in
accordance with its normal procedures, purchase with the sum paid in such other
currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which such party receives such payment. If the
amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the Company will pay such additional
amounts, in the relevant currency, as may be necessary to compensate for the
shortfall. Any obligation of the Company not discharged by such payment will, to
the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, will continue
in full force and effect.
16. Waiver of Immunity. To the extent that the Company has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment in aid or otherwise) with respect to
itself or any of its property, the Company hereby irrevocably waives and agrees
not to plead or claim such immunity in respect of its obligations under this
Agreement.
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17. Third Party Beneficiary. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company, on the one hand, and the
Placement Agents, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
18. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
19. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
20. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
21. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
22. Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the Placement Agents.
Very truly yours,
KANSAS CITY SOUTHERN de
MEXICO, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Banc of America Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BBVA Securities, Inc.
BMO Capital Markets Corp.
Scotia Capital (USA) Inc.
By: Banc of America Securities LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
23
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The company has agreed that, starting on the expiration date
and ending on the close of business one year after the expiration date, it will
make this prospectus available to any broker-dealer for use in connection with
any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The company has agreed
that, starting on the expiration date and ending on the close of business one
year after the expiration date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The company will not receive any proceeds from any sale of new securities
by brokers-dealers. New securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the new securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new securities. Any
broker-dealer that resells new securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such new securities may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
new securities and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of one year after the expiration date, the company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The company has agreed to pay all expenses
incident to the Exchange offer (including the expenses of one counsel for the
holder of the securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities nor will it have any such arrangements or
understandings upon consummation of the Exchange Offer. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange
for Securities, it represents that the Securities to be exchanged for New
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such New Securities; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Act.