REGISTRATION RIGHTS AGREEMENT dated as of March 26, 2007 among SOUTHERN NATURAL GAS COMPANY and BANC OF AMERICA SECURITIES LLC CITIGROUP GLOBAL MARKETS INC. CREDIT SUISSE SECURITIES (USA) LLC
EXHIBIT
10.A
EXECUTION
COPY
dated
as
of
March
26,
2007
among
and
BANC
OF AMERICA
SECURITIES LLC
CITIGROUP
GLOBAL
MARKETS INC.
CREDIT
SUISSE
SECURITIES (USA) LLC
THIS
REGISTRATION
RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of March 26,
2007, by and among Southern Natural Gas Company (the “Company”), a corporation
duly organized and existing under the laws of the State of Delaware, and
Banc of
America Securities LLC (“Banc of America”), Citigroup Global Markets Inc.
(“Citigroup”) and Credit Suisse Securities (USA) LLC, as representatives (the
“Representatives”) of the several initial purchasers listed on Schedule I hereto
(the “Initial Purchasers”).
This
Agreement is
made pursuant to the Purchase Agreement dated March 14, 2007, by and among
the
Company and the Initial Purchasers (the “Purchase Agreement”), which provides
for the sale by the Company to the Initial Purchasers of $500,000,000 principal
amount of its 5.90% Notes due 2017 (the “Securities”). The Securities are to be
issued under an indenture, dated as of June 1, 1987 (the “Base Indenture”), as
supplemented and amended by (i) the First Supplemental Indenture thereto
dated
as of September 30, 1997 (the “First Supplemental Indenture”), (ii) the Second
Supplemental Indenture thereto dated as of February 13, 2001 (the “Second
Supplemental Indenture”) and (iii) the Third Supplemental Indenture thereto
dated as of the Closing Date (as defined herein) (the “Third Supplemental
Indenture”) between the Company and The Bank of New York Trust Company, N.A., as
Trustee. The Base Indenture, as supplemented by the First Supplemental
Indenture, Second Supplemental Indenture and Third Supplemental Indenture,
is
referred to herein as the “Indenture.”
In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the
Company has agreed to provide to each Initial Purchaser and its direct and
indirect transferees the registration rights with respect to the Securities
set
forth in this Agreement. The execution and delivery of this Agreement is
a
condition to the closing under the Purchase Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
“1933
Act” shall
mean the Securities Act of 1933, as amended from time to time.
“1934
Act” shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
“Additional
Interest” shall have the meaning set forth in Section 2(e).
“Agreement”
shall
have the meaning set forth in the preamble.
“Business
Day”
shall have the meaning set forth in Rule 13e-4(a)(3) under the 1934
Act.
“Closing
Date”
shall mean the Closing Date as defined in the Purchase Agreement.
“Company”
shall
have the meaning set forth in the preamble and shall also include the Company's
successors.
“Exchange
Dates”
shall have the meaning set forth in Section 2(a)(ii).
“Exchange
Offer”
shall mean the exchange offer by the Company of Exchange Securities for all
Securities that are Registrable Securities pursuant to Section 2(a)
hereof.
“Exchange
Offer
Registration” shall mean a registration under the 1933 Act effected pursuant to
Section 2(a) hereof.
“Exchange
Offer
Registration Statement” shall mean a registration statement on Form S-4 (or, if
applicable, on another appropriate form) relating to an offering of Exchange
Securities pursuant to an Exchange Offer and all amendments and supplements
to
such registration statement, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
“Exchange
Securities” shall mean any securities issued by the Company (pursuant to the
Exchange Offer or otherwise) to be offered to Holders of Registrable Securities
in exchange for such Registrable Securities pursuant to an Exchange Offer
Registration Statement and containing terms identical in all material respects
to the Securities for which they are exchanged (except that (i) interest
thereon
shall accrue from the last date on which interest was paid on the Securities
or,
if no such interest has been paid, from the date of issuance of the Securities,
(ii) the Exchange Securities will not contain the legend appearing on the
face
of the Securities in the form recited in the Indenture and will not contain
terms with respect to transfer restrictions and (iii) the Exchange Securities
will not contain terms with respect to the payment of Additional Interest
for
failure to comply with this Agreement).
“Free
Writing
Prospectus” means each free writing prospectus (as defined in Rule 405 under the
▇▇▇▇ ▇▇▇) prepared by or on behalf of the Company or used or referred to
by the
Company in connection with the sale of the Securities or Exchange
Securities.
“Holder”
shall
mean
each Initial Purchaser, for so long as it owns any Registrable Securities,
and
each of its successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture; provided
that
for purposes of
Sections 4 and 5 of this Agreement, the term “Holder” shall include
Participating Broker-Dealers.
“Indemnified
Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Indenture”
shall
have the meaning set forth in the preamble.
“Initial
Purchasers” shall have the meaning set forth in the preamble.
“Issuer
Information” shall have the meaning set forth in Section 5(a).
“Majority
Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided
that,
for purposes of
Section 6(b), whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its affiliates (as such term is
defined
in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the Initial Purchasers or subsequent
Holders of Registrable Securities if such subsequent Holders are deemed to
be
affiliates solely by reason of their holding of such Registrable Securities)
shall not be considered outstanding and shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
“Participant”
shall
have the meaning set forth in Section 5(a).
“Participating
Broker-Dealer” shall have the meaning set forth in Section 4(a)
hereof.
“Person”
shall
mean
an individual, partnership, limited liability company, corporation, trust
or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Prospectus”
shall
mean the prospectus included in, or, pursuant to the rules and regulations
of
the 1933 Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including a prospectus supplement with respect
to the
terms of the offering of any portion of the Registrable Securities covered
by a
Shelf Registration Statement, and by all other amendments and supplements
to
such prospectus, and in each case including any document incorporated by
reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble.
“Registrable
Securities” shall mean the Securities; provided that
the Securities
shall cease to be Registrable Securities when (i) a Registration Statement
with
respect to such Securities shall have been declared effective under the 1933
Act
and such Securities shall have been exchanged or disposed of pursuant to
such
Registration Statement, (ii) such Securities have been sold to the public
pursuant to Rule 144 under the 1933 Act or are eligible to be sold pursuant
to
Rule 144(k)(or any similar provision then in force, but not Rule 144A) under
the
1933 Act or (iii) such Securities shall have ceased to be
outstanding.
“Registration
Default” shall have the meaning set forth in Section 2(e).
“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation:
(i)
all SEC, stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any Free Writing Prospectus and any amendments
or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi)
the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel
for
the Holders (which counsel shall be selected by the Majority Holders and
which
counsel may also be counsel for the Initial Purchasers) and (viii) the fees
and
disbursements of the independent public accountants of the Company, including
the expenses of any special audits or “comfort” letters required by or incident
to such performance and compliance, but excluding fees and expenses of counsel
to the underwriters (other than the fees and expenses set forth in clause
(ii)
above) and the Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities
by
a Holder.
“Registration
Statement” shall mean any registration statement of the Company that covers any
of the Exchange Securities or the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all
exhibits thereto and any document incorporated by reference
therein.
“Representatives”
shall have the meaning set forth in the preamble.
“SEC”
shall
mean
the Securities and Exchange Commission.
“Securities”
shall
have the meaning set forth in the preamble.
“Shelf
Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf
Registration
Statement” shall mean a “shelf” registration statement of the Company pursuant
to the provisions of Section 2(b) of this Agreement that covers all of the
Registrable Securities (but no other securities unless approved by the Holders
of a majority of the aggregate principal amount of outstanding Registrable
Securities that are covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that
may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto
and
any document incorporated by reference therein.
“TIA”
shall
have
the meaning set forth in Section 3(m) hereof.
“Trustee”
shall
have the meaning set forth in the preamble.
“Underwriter”
shall
have the meaning set forth in Section 3 hereof.
“Underwritten
Registration or Underwritten Offering” shall mean a registration in which
Registrable Securities are sold to an Underwriter for reoffering to the
public.
2. Registration
under the ▇▇▇▇ ▇▇▇.
(a) To
the extent not
prohibited by any applicable law or applicable interpretation of the staff
of
the SEC, the Company shall (1) cause to be filed an Exchange Offer Registration
Statement within 180 days following the Closing Date covering the offer by
the
Company to the Holders to exchange all of the Registrable Securities for
an
equal aggregate principal amount of Exchange Securities and (2) use its
reasonable best efforts to cause such Exchange Offer Registration Statement
to
become effective within 220 days following the Closing Date. The Company
shall
use its reasonable best efforts to have the Exchange Offer Registration
Statement remain effective until the closing of the Exchange Offer. The Company
shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use its reasonable best
efforts to have the Exchange Offer consummated not later than 30 Business
Days
after such effective date. The Company shall commence the Exchange Offer
by
mailing the related exchange offer Prospectus and accompanying documents
to each
Holder stating, in addition to such other disclosures as are required by
applicable law:
(i) that
the Exchange
Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for
exchange;
(ii) the
dates of
acceptance for exchange (which shall be a period of at least 20 Business
Days
from the date such notice is mailed) (the “Exchange Dates”);
(iii) that
any
Registrable Security not tendered will remain outstanding and continue to
accrue
interest, but will not retain any rights under this Agreement, except as
otherwise specified herein;
(iv) that
Holders
electing to have a Registrable Security exchanged pursuant to the Exchange
Offer
will be required to surrender such Registrable Security, together with the
enclosed letters of transmittal, to the institution and at the address specified
in the notice prior to the close of business on the last Exchange Date;
and
(v) that
any Holder
will be entitled to withdraw its election, not later than the close of business
on the last Exchange Date, by sending to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in
the
notice, a telegram, telex, facsimile transmission or letter setting forth
the
name of such Holder, the principal amount of Registrable Securities delivered
for exchange and a statement that such Holder is withdrawing its election
to
have such Registrable Securities exchanged.
As
soon as practicable after the last Exchange Date, the Company
shall:
(A) accept
for exchange
Registrable Securities or portions thereof tendered and not validly withdrawn
pursuant to the Exchange Offer; and
(B) deliver,
or cause
to be delivered, to the Trustee for cancellation all Registrable Securities
or
portions thereof so accepted for exchange by the Company and issue, and cause
the Trustee to promptly authenticate and deliver to each Holder, Exchange
Securities equal in principal amount to the principal amount of the Registrable
Securities tendered by such Holder.
The
Company shall
use its reasonable best efforts to complete the Exchange Offer as provided
above
and shall comply with the applicable requirements of the 1933 Act, the 1934
Act
and other applicable laws and regulations in connection with the Exchange
Offer.
The Exchange Offer shall not be subject to any conditions, other than that
the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC. The Company shall inform the Initial Purchasers
of the
names and addresses of the Holders to whom the Exchange Offer is made, and
the
Initial Purchasers shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities
in
the Exchange Offer.
If,
during the
period the Exchange Offer Registration Statement is effective, an event occurs
which makes any statement made in such Exchange Offer Registration Statement
or
the related Prospectus untrue in any material respect or which requires the
making of any changes in such Exchange Offer Registration Statement in order
to
make the statements therein not misleading or in such Prospectus in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, the Company shall use its reasonable best efforts
to
prepare and file with the SEC a supplement or post-effective amendment to
the
Exchange Offer Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that,
as thereafter delivered to the purchasers of the Registrable Securities,
such
Prospectus will not contain any untrue statement of a material fact or omit
to
state a material fact necessary to make the statements therein, in light
of the
circumstances under which they were made, not misleading. The Company agrees
to
notify the Holders to suspend the exchange of the Registrable Securities
as
promptly as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend such exchange until the Company has amended or
supplemented the Prospectus to correct such misstatement or
omission.
(b) If
(i) the Company
determines that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be consummated as soon as practicable after
the last Exchange Date because it would violate applicable law or the applicable
interpretations of the staff of the SEC, (ii) the Exchange Offer is not for
any
other reason consummated within 270 days following the Closing Date or (iii)
in
the written opinion of counsel for the Holders a Shelf Registration Statement
must be filed and a Prospectus must be delivered by any Holder in connection
with any reoffering or resale of Registrable Securities, the Company shall
(x)
file with the SEC within 75 days following such determination, date or notice
of
such opinion of counsel is given to the Company a Shelf Registration Statement
providing for the resale by the Holders (other than those who fail to comply
with the paragraph immediately following clause (q) of Section 3) of all
of
their Registrable Securities and (y) use its reasonable best efforts to cause
such Shelf Registration Statement to become effective within 60 days of the
filing of such Shelf Registration Statement. If the Company is required to
file
a Shelf Registration Statement solely as a result of the matters referred
to in
clause (iii) of the preceding sentence, the Company shall use its reasonable
best efforts to file and have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration Statement)
with respect to reoffers and resales of Registrable Securities held by the
Holders who must deliver the related Prospectus. The Company agrees to use
its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective until the expiration of the period referred to in Rule 144(k) of
the
1933 Act with respect to the Registrable Securities or such shorter period
that
will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be Registrable Securities within the meaning of this
Agreement. The Company further agrees to supplement or amend the Shelf
Registration Statement, the related Prospectus and any Free Writing Prospectus
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement
or
by the 1933 Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder with respect to information
relating to such Holder, and to use its reasonable best efforts to cause
any
such amendment to become effective and such Shelf Registration Statement,
Prospectus or Free Writing Prospectus, as the case may be, to become usable
as
soon as thereafter practicable. The Company agrees to furnish to the Holders
of
Registrable Securities copies of any such supplement or amendment promptly
after
its being used or filed with the SEC.
(c) The
Company shall
pay all Registration Expenses in connection with any registration pursuant
to
Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts,
if any, and commissions and transfer taxes, if any, relating to the sale
or
disposition of such Holder’s Registrable Securities pursuant to a Shelf
Registration Statement.
(d) An
Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that, if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with
by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed
not to
have become effective during the period of such interference until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
(e) The
Company and the
Initial Purchasers agree that the Holders will suffer damages if the Company
fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof
and
that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company agrees that if:
(i) the
Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 180 th
day
following the Closing Date,
(ii) the
Exchange Offer
Registration Statement is not declared effective on or prior to the 220 th
day
following the Closing Date,
(iii) the
Exchange Offer
is not completed on or prior to the 270 th day following the Closing Date,
or
(iv) the
Shelf
Registration Statement is required to be filed but is not filed or declared
effective within the time period set forth herein or is declared effective
but
thereafter ceases to be effective or usable prior to the expiration of the
period referred to in Rule 144(k) with respect to the Registrable Securities
other than after the Registrable Securities have been disposed of under the
Shelf Registration Statement or cease to be Registrable Securities, without
being succeeded within two Business Days by a post-effective amendment which
cures the failure and that is itself immediately declared effective,(each
such
event referred to in clauses (i) through (iv) a “Registration Default”),
additional interest (“Additional Interest”) will accrue on the affected
Registrable Securities and the affected Exchange Securities, as applicable.
The
rate of Additional Interest will be 0.25% per annum of the principal amount
of
Registrable Securities held by such Holder for the first 90-day period
immediately following the occurrence of a Registration Default, increasing
by
0.25% per annum with respect to each subsequent 90-day period, up to a maximum
of 1.00% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which
all
Registration Defaults have been cured or (2) the date on which all the
Registrable Securities and Exchange Securities otherwise become freely
transferable by Holders other than affiliates of the Company without further
registration under the 1933 Act.
Notwithstanding
the
foregoing, (1) the amount of Additional Interest payable shall not increase
because more than one Registration Default has occurred and is pending and
(2) a
Holder of Registrable Securities or Exchange Securities who is not entitled
to
the benefits of the Shelf Registration Statement because such Holder has
not
provided the information called for hereby for inclusion in the Shelf
Registration Statement shall not be entitled to Additional Interest with
respect
to a Registration Default that pertains to the Shelf Registration
Statement.
(f) The
Company shall
notify the Trustee within one Business Day after each date on which an event
occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due pursuant to this Section 2 will be payable
in
addition to any other interest payable from time to time with respect to
the
Registrable Securities in cash semi-annually on the interest payment dates
specified in the Indenture (to the holders of record as specified in the
Indenture), commencing with the first such interest payment date occurring
after
any such Additional Interest commence to accrue. The amount of Additional
Interest will be determined in a manner consistent with the calculation of
interest under the Indenture.
(g) Without
limiting
the remedies available to the Initial Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material irreparable
injury to the Initial Purchasers and the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers
or
any Holder may obtain such relief as may be required to specifically enforce
the
Company’s obligations under Section 2(a) and Section 2(b) hereof.
3. Registration
Procedures.
In
connection with the obligations of the Company with respect to the Registration
Statements pursuant to Section 2(a) and Section 2(b) hereof, the Company
shall
as expeditiously as possible (provided, however, that the Company shall not
be
required to take actions more promptly than required by Sections 2(a) and
2(b)):
(a) prepare
and file
with the SEC a Registration Statement on the appropriate form under the 1933
Act, which form (x) shall be selected by the Company, (y) shall, in the case
of
a Shelf Registration, be available for the sale of the Registrable Securities
by
the selling Holders thereof and (z) shall comply as to form in all material
respects with the applicable requirements of the 1933 Act and rules and
regulations promulgated thereunder and include all financial statements required
by the SEC to be filed therewith, and use reasonable best efforts to cause
such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
(b) prepare
and file
with the SEC such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement effective
for
the applicable period in accordance with Section 2 hereof and cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and keep
each
Prospectus current during the period described under Section 4(3) and Rule
174
under the 1933 Act that is applicable to transactions by brokers or dealers
with
respect to the Registrable Securities or Exchange Securities;
(c) to
the extent any
Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus
that is required to be filed by the Company with the SEC in accordance with
the
1933 Act and to retain any Free Writing Prospectus not required to be
filed;
(d) in
the case of a
Shelf Registration, furnish to each Holder of Registrable Securities, to
counsel
for the Initial Purchasers and to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, each preliminary Prospectus
or Free Writing Prospectus and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in
order
to facilitate the public sale or other disposition of the Registrable
Securities; and, subject to Section 3(j), the Company consents to the use
of
such Prospectus, preliminary Prospectus or Free Writing Prospectus and any
amendment or supplement thereto in accordance with applicable law by each
of the
Holders of Registrable Securities and any such Underwriters in connection
with
the offering and sale of the Registrable Securities covered by and in the
manner
described in such Prospectus, preliminary Prospectus or Free Writing Prospectus
or any amendment or supplement thereto in accordance with applicable
law;
(e) use
its reasonable
best efforts to register or qualify the Registrable Securities under all
applicable state securities or blue sky laws of such jurisdictions as any
Holder
of Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is declared
effective by the SEC, and to cooperate with such Holders in connection with
any
filings required to be made with the National Association of Securities Dealers,
Inc. and do any and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in each
such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not
otherwise be required to so qualify but for this Section 3(e), (ii) file
any
general consent to service of process or (iii) subject itself to taxation
in any
such jurisdiction if it is not so subject;
(f) in
the case of a
Shelf Registration, notify each Holder of Registrable Securities, counsel
for
the Holders and counsel for the Initial Purchasers (or, if applicable, separate
counsel for the Holders) promptly and, if requested by any such Holder or
counsel, confirm such advice in writing, (i) when a Registration Statement
has
become effective and when any post-effective amendment thereto has been filed
and becomes effective, when any Free Writing Prospectus has been filed or
any
amendment or supplement to the Prospectus or any Free Writing Prospectus
has
been filed, (ii) of any request by the SEC or any state securities authority
for
amendments and supplements to a Registration Statement, Prospectus or any
Free
Writing Prospectus or for additional information relating to the Registration
Statement after the Registration Statement has become effective, (iii) of
the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of
any proceedings for that purpose, (iv) if, between the effective date of
a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained
in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct
in all
material respects or if the Company receives any notification with respect
to
the suspension of the qualification of the Registrable Securities for sale
in
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of
the happening of any event during the period a Shelf Registration Statement
is
effective which makes any statement made in such Shelf Registration Statement
or
the related Prospectus or any Free Writing Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement in order to make the statements therein not misleading or in such
Prospectus or any Free Writing Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (vi) of any determination by the Company that a post-effective
amendment to a Registration Statement or any amendment or supplement to the
Prospectus or any Free Writing Prospectus would be appropriate;
(g) use
its reasonable
best efforts to obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such
order;
(h) in
the case of a
Shelf Registration, furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents incorporated therein
by
reference or exhibits thereto, unless requested in writing);
(i) in
the case of a
Shelf Registration, cooperate with the Holders of Registrable Securities
to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the
Indenture) and registered in such names as the Holders may reasonably request
at
least two Business Days prior to the closing of any sale of Registrable
Securities;
(j) in
the case of a
Shelf Registration, upon the occurrence of any event contemplated by Section
3(f)(v) hereof, use its reasonable best efforts to prepare and file with
the SEC
a supplement or post-effective amendment to a Registration Statement or the
related Prospectus, any Free Writing Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus
or
Free Writing Prospectus, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The Company agrees to notify the Holders of Registrable
Securities to suspend use of the Prospectus or any Free Writing Prospectus
as
promptly as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus or any Free Writing Prospectus
until the Company has amended or supplemented the Prospectus or any Free
Writing
Prospectus to correct such misstatement or omission and has furnished copies
of
the amended or supplemented Prospectus or Free Writing Prospectus to the
Holders
or until the Company notifies the Holders that the sale of the Registrable
Securities may be resumed;
(k) a
reasonable time
prior to the filing of any Registration Statement, any Prospectus, any Free
Writing Prospectus, any amendment to a Registration Statement or amendment
or
supplement to a Prospectus, a Free Writing Prospectus, or any document which
is
to be incorporated by reference into a Registration Statement or Prospectus
after the initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of
a
Shelf Registration Statement, the Holders and their counsel) and make such
of
the representatives of the Company as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) available for discussion of such
document, and shall not at any time file or make any amendment to the Shelf
Registration Statement, any Prospectus, any Free Writing Prospectus or any
amendment of or supplement to a Shelf Registration Statement or a Prospectus
or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders or their
counsel) shall not have previously been advised and furnished a copy or to
which
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably
object;
(l) obtain
a CUSIP
number for all Exchange Securities or Registrable Securities, as the case
may
be, not later than the effective date of the applicable Registration
Statement;
(m) if
not already
qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), cause
the Indenture to be so qualified in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, and cooperate
with the Trustee and the Holders to effect such changes to the Indenture
as may
be required for the Indenture to be so qualified in accordance with the terms
of
the TIA and execute, and use commercially reasonable best efforts to cause
the
Trustee to execute, all documents as may be required to effect such changes
and
all other forms and documents required to be filed with the SEC to enable
the
Indenture to be so qualified in a timely manner;
(n) in
the case of a
Shelf Registration, make available for inspection by a representative of
the
Holders of the Registrable Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys
and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all relevant financial and other records, pertinent documents and
properties of the Company, and cause the respective officers, directors and
employees of the Company to supply all information reasonably requested by
any
such representative, Underwriter, attorney or accountant in connection with
a
Shelf Registration Statement, in each case that would customarily be reviewed
or
examined in connection with “due diligence” review of the Company;
(o) use
its reasonable
best efforts to cause the Exchange Securities to continue to be rated by
two
nationally recognized statistical rating organizations (as such term is defined
in Rule 436(g)(2) under the 1933 Act), if the Registrable Securities have
been
rated prior to the initial sale of such Registrable Securities;
(p) if
reasonably
requested by any Holder of Registrable Securities covered by a Registration
Statement, (i) 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 (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as reasonably
practicable after the Company has received notification of the matters to
be
incorporated in such filing; and
(q) in
the case of a
Shelf Registration, enter into such customary agreements and take all such
other
actions in connection therewith (including those reasonably requested by
the
Holders of a majority of the Registrable Securities being sold thereunder)
in
order to expedite or facilitate the disposition of such Registrable Securities
thereunder including, but not limited to, pursuant to an Underwritten Offering
and in such connection, (i) to the extent possible, make such representations
and warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its subsidiaries,
the
Registration Statement, Prospectus, any Free Writing Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which counsel
and
opinions, in form, scope and substance, shall be reasonably satisfactory
to the
Holders of a majority in principal amount of the Registrable Securities being
sold under such Shelf Registration Statement, such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain “comfort” letters from the
independent certified public accountants of the Company (and, if necessary,
any
other certified public accountant 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 and Underwriter of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered
in
“comfort” letters in connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders
of
a majority in principal amount of the Registrable Securities being sold under
such Shelf Registration Statement or by the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made pursuant
to
clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
In
the case of a Shelf Registration Statement, the Company may require each
Holder
of Registrable Securities to furnish to the Company such information regarding
the Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
No Holder of Registrable Securities may include its Registrable Securities
in
such Shelf Registration Statement unless and until such Holder furnishes
such
information to the Company. Each Holder including Registrable Securities
in a
Shelf Registration Statement shall agree to furnish promptly to the Company
all
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities required to make the information previously
furnished to the Company by such Holder not materially misleading.
In
connection with an Exchange Offer Registration, each Holder exchanging
Securities for Exchange Securities shall be required to represent that (i)
neither the Holder nor any such other Person is an “affiliate” of the Company
within the meaning of Rule 405 under the 1933 Act or, if such Person is an
“affiliate,” that such Holder will comply with the registration and prospectus
delivery requirements of the 1933 Act to the extent applicable, (ii) at the
time
of the Exchange Offer, neither such Holder nor any such other Person has
an
arrangement or understanding with any Person to participate in the distribution
of Securities or Exchange Securities, (iii) the Exchange Securities are being
obtained in the ordinary course of business of the Person receiving such
Exchange Securities, whether or not such Person is a Holder, and (iv) other
than
as set forth in Section 4, if the Holder is not a broker-dealer, or is a
broker-dealer but will not receive Exchange Securities for its own account
in
exchange for Securities, neither the Holder nor any such other Person is
engaged
in or intends to participate in a distribution of the Exchange
Securities.
In
the case of a Shelf Registration Statement, each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind
described in Section 3(f)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement
until
such Holder’s receipt of the copies of the supplemented or amended Prospectus
and any Free Writing Prospectus contemplated by Section 3(j) hereof, and,
if so
directed by the Company, such Holder will destroy or deliver to the Company
(at
its expense) all copies in its possession, other than permanent file copies
then
in such Holder’s possession, of the Prospectus and any Free Writing Prospectus
covering such Registrable Securities that is current at the time of receipt
of
such notice.
If
the Company shall give any such notice to suspend the disposition of Registrable
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 received copies of the supplemented or amended Prospectus
or any Free Writing Prospectus necessary to resume such dispositions. The
Company may give such notice so long as there are no more than 90 days during
any 365 day period in which such suspensions are in effect.
The
Holders of
Registrable Securities covered by a Shelf Registration Statement who desire
to
do so may sell such Registrable Securities in an Underwritten Offering. In
any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers (each an “Underwriter”) that will administer the offering
will be selected by the Majority Holders of the Registrable Securities included
in such offering, provided that such Underwriters shall be reasonably acceptable
to the Company.
4. Participation
of
Broker-Dealers in Exchange Offer.
(a) The
parties hereto
understand that the staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
“Participating Broker-Dealer”), may be deemed to be an “underwriter” within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange
Securities.
The
Company
understands that it is currently the staff’s position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by
which
Participating Broker-Dealers may resell the Exchange Securities, without
naming
the Participating Broker-Dealers or specifying the amount of Exchange Securities
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the 1933 Act.
(b) In
light of the
above, notwithstanding the other provisions of this Agreement, the Company
agrees that the provisions of this Agreement as they relate to a Shelf
Registration shall also apply to an Exchange Offer Registration to the extent,
and with such reasonable modifications thereto as may be, reasonably requested
by the Initial Purchasers or by one or more Participating Broker-Dealers,
in
each case as provided in clause (ii) below, in order to expedite or facilitate
the disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided
that:
(i) the
Company shall
not be required to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement, as would otherwise be contemplated by Section
3(j), for a period exceeding 180 days after the last Exchange Date (as such
period may be extended pursuant to the penultimate paragraph of Section 3
of
this Agreement) and Participating Broker-Dealers shall not be authorized
by the
Company to deliver and shall not deliver such Prospectus after such period
in
connection with the resales contemplated by this Section 4; and
(ii) the
application of
the Shelf Registration procedures set forth in Section 3 of this Agreement
to an
Exchange Offer Registration, to the extent not required by the positions
of the
staff of the SEC or the 1933 Act and the rules and regulations thereunder,
will
be in conformity with the reasonable request in writing to the Company by
the
Initial Purchasers or with the reasonable request in writing to the Company
by
one or more broker-dealers who certify to the Initial Purchasers and the
Company
in writing that they anticipate that they will be Participating Broker-Dealers;
and provided further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be Banc of America
Securities LLC unless it elects not to act as such representative, (y) to
pay
the fees and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchasers unless such
counsel elects not to so act and (z) to cause to be delivered only one, if
any,
“comfort” letter with respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or supplement,
if
any, effected during the period specified in clause (i) above.
(c) The
Initial
Purchasers shall have no liability to the Company, other than as Holders
in
accordance with the terms hereof, or to any other Holder with respect to
any
request that they may make pursuant to Section 4(b) above.
5. Indemnification
and Contribution.
(a) The
Company agrees
to indemnify and hold harmless the Initial Purchasers, each Holder and each
Person, if any, who controls the Initial Purchasers or any Holder within
the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or
is under common control with, or is controlled by, the Initial Purchasers
or any
Holder (each, a “Participant”), from and against all losses, claims, damages and
liabilities (including, without limitation, any legal fees or other expenses
reasonably incurred by a Participant in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities
or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by
any
untrue statement or alleged untrue statement of a material fact contained
in any
Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer
Information”) filed or required to be filed pursuant to Rule 433(d) under the
Securities Act, or caused by any omission or alleged omission to state therein
a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as
such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon and in conformity
with information relating to the Initial Purchasers or any Holder furnished
to
the Company in writing by the Initial Purchasers or any selling Holder expressly
for use therein. In connection with any Underwritten Offering permitted by
Section 3, the Company will also enter into an underwriting agreement pursuant
to which the Company will agree to indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating
in
such Underwritten Offering, their officers and directors and each Person
who
controls such Persons (within the meaning of either Section 15 of the 1933
Act
or Section 20 of the ▇▇▇▇ ▇▇▇) to the same extent as provided above with
respect
to the indemnification of the Holders, if requested in connection with any
Registration Statement for such Underwritten Offering.
(b) Each
Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Initial Purchasers and the other selling Holders, and each of their respective
directors and officers who sign the Registration Statement and each Person,
if
any, who controls the Company, the Initial Purchasers and any other selling
Holder within the meaning of either Section 15 of the 1933 Act or Section
20 of
the 1934 Act to the same extent as the foregoing indemnity from the Company
to
the Initial Purchasers and the Holders pursuant to Section 5(a), but only
with
reference to information relating to such Holder furnished to the Company
in
writing by such Holder expressly for use in any Registration Statement (or
any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
and any Free Writing Prospectus.
(c) In
case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant
to
either paragraph (a) or paragraph (b) above, such Person (the “Indemnified
Party”) shall promptly notify the Person against whom such indemnity may be
sought (the “Indemnifying Party”) in writing, but the failure to so promptly
notify the Indemnifying Party shall not negate the obligation to so indemnify
such Indemnified Party unless the Indemnifying Party is materially prejudiced
by
such delay, and the Indemnifying Party, upon request of the Indemnified Party,
shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and expenses of such
counsel
related to such proceeding. In any such proceeding, any Indemnified Party
shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to
the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party and
the
Indemnified Party and, in the opinion of counsel to the Indemnifying Party,
representation of both parties by the same counsel would be inappropriate
due to
actual or potential differing interests between them. It is understood that
the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses
of
more than one separate firm (in addition to any local counsel) for the Initial
Purchasers and all Persons, if any, who control the Initial Purchasers within
the meaning of either Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇,
(▇) the fees and expenses of more than one separate firm (in addition to
any
local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the Company
within
the meaning of either such Section and (c) the fees and expenses of more
than
one separate firm (in addition to any local counsel) for all Holders and
all
Persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they
are
incurred. In such case involving the Initial Purchasers and Persons who control
the Initial Purchasers, such firm shall be designated in writing by the
Representatives. In such case involving the Holders and such Persons who
control
Holders, such firm shall be designated in writing by the Majority Holders.
In
all other cases, such firm shall be designated by the Company. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
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, effect any settlement of any pending or
threatened proceeding in respect of which such Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release
of
such Indemnified Party from all liability on claims that are the subject
matter
of such proceeding.
(d) If
the
indemnification provided for in paragraph (a) or paragraph (b) of this Section
5
is unavailable to an Indemnified Party or insufficient in respect of any
losses,
claims, damages or liabilities, then each Indemnifying Party under such
paragraph, in lieu of indemnifying such Indemnified Party thereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or parties
on the one hand and of the Indemnified Party or parties on the other hand
in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders 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 information supplied by the Company or by the
Holders
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective principal amount of Registrable Securities
of
the applicable Holder that were registered pursuant to a Registration
Statement.
(e) The
Company and
each Holder agree that it would not be just or equitable if contribution
pursuant to Section 5(d) were determined by pro rata allocation or by any
other
method of allocation that does not take account of the equitable considerations
referred to in Section 5(d) above. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages and liabilities referred
to in
Section 5(d) above shall be deemed to include, subject to the limitations
set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required
to
indemnify or contribute 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 such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any
Person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 5 are not exclusive and shall not limit any
rights
or remedies which may otherwise be available to any Indemnified Party at
law or
in equity.
(f) The
indemnity and
contribution provisions contained in this Section 5 shall remain operative
and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of the Initial Purchasers, any
Holder or any Person controlling the Initial Purchasers or any Holder, or
by or
on behalf of the Company, its officers or directors or any Person controlling
the Company, (iii) acceptance of any of the Exchange Securities and (iv)
any
sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) No
Inconsistent
Agreements. The Company has not entered into, and on or after the date of
this
Agreement will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement
or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with
the rights granted to the holders of the Company’s other issued and outstanding
securities under any such agreements.
(b) Amendments
and
Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company
has
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided, however,
that
no amendment, modification, supplement, waiver or consent to any departure
from
the provisions of Section 5 hereof or this paragraph (b) shall be effective
as
against any Holder of Registrable Securities unless consented to in writing
by
such Holder.
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, registered first-class mail, telecopier,
or
any courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice
given
in accordance with the provisions of this Section 6(c), which address initially
is, with respect to the Initial Purchasers, the address set forth in the
Purchase Agreement; and (ii) if to the Company, initially at the Company’s
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(c).
All
such notices
and communications shall be deemed to have been duly given at the time delivered
by hand, if personally delivered; five Business Days after being deposited
in
the mail, postage pre-paid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery.
Copies
of all such
notices, demands, or other communications shall be concurrently delivered
by the
Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) Successors
and
Assigns. This Agreement shall inure to the benefit of, and be binding upon,
the
successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders
of
Registrable Securities; provided
that
nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Securities and the
Purchase Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform
all of
the terms and provisions of this Agreement and such Person shall be entitled
to
receive the benefits hereof. The Initial Purchasers shall have no liability
or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any other Holder of, any of the obligations of such
Holder under this Agreement.
(e) Purchases
and Sales
of Securities. The Company shall not, and shall use its reasonable best efforts
to cause its affiliates (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) not to,
purchase and then resell or otherwise transfer any Securities.
(f) Third
Party
Beneficiary. Each Holder shall be a third party beneficiary to the agreements
made hereunder between the Company, on the one hand, and the Initial Purchasers,
on the other hand, shall be bound by all of the terms and provisions of this
Agreement 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.
(g) 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.
(h) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i) Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
(j) Severability.
In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable the validity, legality and enforceability of any such provision
in
every other respect and of the remaining provisions contained herein shall
not
be affected or impaired thereby.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇
▇.
▇▇▇▇▇▇
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Title: Vice
President and Treasurer
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Confirmed
and
accepted as of the
date
first above
written:
|
Banc
of
America Securities LLC
Citigroup
Global Markets Inc.
Credit
Suisse
Securities (USA) LLC
|
|
|
By:
|
Banc
of
America Securities LLC
|
|
By:
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/s/ ▇▇▇▇ ▇▇▇▇▇ |
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Name:
▇▇▇▇ ▇▇▇▇▇
|
|
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Title: Principal
|
|
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By:
|
Citigroup
Global Markets Inc.
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
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Title: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
By:
|
Credit
Suisse
Securities (USA) LLC
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇ |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
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Title: Director
|
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SCHEDULE
I
Initial
Purchasers
Banc
of America
Securities LLC
Citigroup
Global
Markets Inc.
Credit
Suisse
Securities (USA) LLC
BNP
Paribas
Securities Corp.
HVB
Capital
Markets, Inc.
Greenwich
Capital
Markets, Inc.
Scotia
Capital
(USA) Inc.
SG
Americas
Securities, LLC