Exhibit 4.3
EXECUTION COPY
HQI TRANSELEC CHILE S.A.
$465,000,000
7 7/8% Senior Notes due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 17, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO Incorporated
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
ABN AMRO Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
HQI Transelec Chile S.A., a corporation organized under the laws of
Chile (the "Company"), proposes to issue and sell to certain purchasers (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement dated
April 6, 2001 (the "Purchase Agreement"), its 7 7/8% Senior Notes due 2011 (the
"Securities") relating to the initial placement of the Securities (the "Initial
Placement"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of 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 Initial Purchasers) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the respective meanings set forth in the Purchase 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" of any specified person shall mean any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such person whether by contract
or otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
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"Business Day" shall mean each day which is neither a Saturday,
Sunday or other day on which banking institutions in The City of New York are
authorized or required by law or executive order to be closed.
"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 Prospectus" shall mean the prospectus included in
the Exchange Offer Registration Statement, as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the New Securities covered by such Exchange Offer Registration Statement, and
all amendments and supplements thereto and all material incorporated by
reference therein.
"Exchange Offer Registration Period" shall mean the 180-day 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; provided, however,
that in the case where a Prospectus must be delivered by a Participating
Broker-Dealer or an Initial Purchaser, the Exchange Offer Registration Period
shall be the lesser of 180 days and the date on which all Participating
Broker-Dealers and Initial Purchasers have sold all New Securities held by them.
"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 Exchange Offer Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Participating Broker-Dealer" shall mean any Holder (which may
include any Initial Purchaser) 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).
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of April, 17, 2001, between the Company and Bankers Trust Company, as
trustee, 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
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
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"New Securities" shall mean debt securities of the Company identical
in all material respects to the Securities (except that the interest rate
step-up provisions and the transfer restrictions shall be modified or
eliminated, as appropriate) to be issued under the 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 and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"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.
"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.
"Shelf Registration Period" has the meaning set forth in Section
3(b) 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.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) Unless not permitted by applicable
law, the Company shall prepare and file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company may, in lieu of such a filing, confidentially submit the Exchange Offer
Registration Statement to the Commission; provided that the Company shall
promptly provide to the Trustee a copy of the cover letter accompanying such
submission; and provided, further, that a confidential submission to the
Commission shall
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not satisfy the Company's periodic reporting requirements as set forth under the
Indenture. The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act within
225 days of the date of the original issuance of the Securities.
(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 unless separately agreed in writing, not more than 30
Business Days after the date notice thereof is mailed to the Holders (or,
in each case, longer if required by applicable law);
(iii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as required,
under the Act to ensure that it is available for sales of New Securities
by Participating Broker-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 or an Affiliate of it;
(v) permit Holders to withdraw tendered Securities 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, if requested or required by the Commission, 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 Xxxxxx Xxxxxxx 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
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(vii) comply in all 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 validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) all Securities so accepted for exchange; and
(iii) cause the 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 such Holder
using the Registered Exchange Offer to participate in a distribution of the New
Securities (x) could not under Commission policy as in effect on the date of
this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co.,
Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirement of the Act in
connection with 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, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in
the ordinary course of business;
(ii) 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;
(iii) such Holder is not an Affiliate of the Company;
(iv) if such Holder is not a broker-dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the New
Securities; and
(v) if such Holder is a broker-dealer, that it will receive New
Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will
deliver a Prospectus in connection with any resale of such New Securities.
(f) If, prior to the consummation of the Registered Exchange Offer,
any Initial Purchaser determines that 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 such Initial
Purchaser, the Company shall issue and deliver to such Initial Purchaser or
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the person purchasing New Securities registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Initial Purchaser, 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 of original issuance of the Securities; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be exchanged for
New Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer; (iv) any Holder (other
than an Initial Purchaser) is not eligible to participate in the Registered
Exchange Offer or does not receive freely tradeable New Securities in the
Registered Exchange Offer other than by reason of such Holder being an Affiliate
of the Company; or (v) in the case of any Initial Purchaser that participates in
the Registered Exchange Offer or acquires New Securities pursuant to Section
2(f) hereof, such Initial Purchaser does not receive freely tradeable New
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that (x) the requirement that an Initial
Purchaser 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 (y) the requirement that an
Participating Broker-Dealer deliver an Exchange Offer Prospectus in connection
with sales of New 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 (but in no
event more than 30-days after so required or requested pursuant to this Section
3), file with the Commission and thereafter shall use its reasonable best
efforts to cause to be declared effective under the Act 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 an Initial Purchaser) 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; and provided further, that with respect to New Securities received
by an Initial Purchaser 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, 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. The Company
may, in lieu of such a filing and within the time period provided for such a
filing, confidentially submit the Shelf Registration Statement to the
Commission; provided that the Company shall promptly provide to the Trustee a
copy of the cover letter accompanying such submission; and provided, further,
that a confidential submission to the Commission shall not satisfy the Company's
periodic reporting requirements as set forth under the Indenture.
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(ii) The Company shall use its reasonable best efforts to 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 of two years from the date the Shelf
Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not to have used
its reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless (A) such action is required by applicable
law; or (B) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of Section 4(k)
hereof, if applicable.
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 you, not less than two 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 (unless otherwise publicly available) 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 you
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 an Initial Purchaser, 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 the rules and
regulations thereunder;
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(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; provided,
however, that the Company will not be liable for written information
furnished to the Company by or on behalf of any Holder or Initial
Purchaser specifically for inclusion therein; and
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company will not be liable for written information furnished to the
Company by or on behalf of any Holder or Initial Purchaser specifically
for inclusion therein.
(c) The Company shall advise you, the Holders of Securities covered
by any Shelf Registration Statement and any Participating Broker-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 you or any such Holder or Participating Broker-Dealer, shall
confirm such advice in writing (which notice pursuant to clauses (ii) through
(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):
(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 initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities or New Securities
included therein for sale in any jurisdiction or the initiation 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, the
statements therein are not misleading and 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 obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(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
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and any post-effective amendment thereto, including all material incorporated
therein by reference (unless otherwise publicly available), and, if the Holder
so requests in writing, all exhibits (unless otherwise publicly available)
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 each preliminary
Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Company consents,
subject to the provisions of this Agreement, 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 Participating Broker-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 (unless otherwise publicly available) incorporated by reference
therein, and, if the Participating Broker-Dealer so requests in writing, all
exhibits (unless otherwise publicly available) thereto (including exhibits
incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial Purchaser,
each Participating Broker-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, subject to the provisions of this
Agreement, to the use of the Prospectus or any amendment or supplement thereto
by any Initial Purchaser, any Participating Broker-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
offer and sale in Luxembourg and under the securities or "blue sky" laws of such
State of the United States as any Holder shall reasonably request in writing and
will maintain such qualification in effect so long as required; provided,
however, that in no event shall the Company be obligated (x) to qualify to do
business in any jurisdiction where it is not then so qualified or (y) to take
any action that would subject it to service of process in suits, other than
those arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery, within a reasonable period of
time prior to the issuance or sale of the Securities or New Securities pursuant
to any Registration Statement, 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.
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(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, during the period for which the Company is required
to maintain an effective Registration Statement, 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 to Holders of the Securities or New
Securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, if the Company notifies the Initial
Purchasers, the Holders of the Securities and any known participating
Broker-Dealer in accordance with paragraphs (c) (i) through (v) of Section (4)
above to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made, then the Initial Purchasers, the Holders of the
Securities and any such participating Broker-Dealers shall suspend use of such
Prospectus and the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 and the Shelf Registration Statement
provided for in Section 3(b) shall each 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 Initial Purchasers, the Holders
of the Securities and any known Broker-Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section 4(k).
(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, or otherwise provide in accordance with Section 11(a) of the
Act, as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(n) The Company shall cause the 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 Shelf
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably 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 such agreements (including if requested an underwriting
agreement in customary form) and take all other necessary actions in order to
expedite or facilitate the registration or the disposition of the Securities
pursuant to any such Shelf Registration Statement, 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 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 6.
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(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 Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries as shall be
reasonably necessary to enable such person to conduct a reasonable
investigation within the meaning of Section 11 of the Act; provided,
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, 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 generally or through a third
party without an accompanying obligation of confidentiality; provided
further, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders by the Representatives and
on behalf of other parties, by one counsel designated by and on behalf of
such other parties as described in Section 5 hereof;
(ii) cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, 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, 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 generally or
through a third party without an accompanying obligation of
confidentiality; provided further, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Holders by
the Representatives and on behalf of other parties, by one counsel
designated by and on behalf of such other parties as described in Section
5 hereof;
(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 Purchase 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 Managing Underwriters, if any, on behalf of
the underwriters, 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 Managing Underwriters;
(v) obtain "cold 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 Shelf Registration Statement), addressed to each selling
Holder of Securities registered thereunder and the underwriters, if any,
in customary form and
12
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and 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.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto; and (B) 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, to the extent requested by the Initial Purchasers:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as
shall be reasonably necessary to enable such person to conduct a
reasonable investigation within the meaning of Section 11 of the Act;
provided, 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, 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 generally or through a third
party without an accompanying obligation of confidentiality; provided
further, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders by the Representatives and
on behalf of other parties, by one counsel designated by and on behalf of
such other parties as described in Section 5 hereof;
(ii) cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by such Initial Purchaser or
any such attorney, accountant or agent in connection with any such
Exchange Offer Registration Statement as is customary for similar due
diligence examinations; provided, 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
such Initial Purchaser 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 generally or
through a third party without an accompanying obligation of
confidentiality; provided further, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Holders by
the Representatives and on behalf of other parties, by one counsel
designated by and on behalf of such other parties as described in Section
5 hereof;
(iii) make such representations and warranties to such Initial
Purchaser, 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 Purchase 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 such Initial Purchaser and its counsel,
addressed to such Initial Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Initial
Purchaser or its counsel;
(v) obtain "cold 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 such Initial
Purchaser, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings, or if requested by such Initial Purchaser or its counsel in
lieu of a "cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by such
Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by such Initial Purchaser or its counsel, including those to
evidence compliance with Section 4(k) and with conditions customarily
contained in underwriting agreements.
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.
(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
xxxx, or cause to be marked, on the Securities so exchanged that such Securities
are being canceled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts, if the
Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings 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 Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) 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 requirements
of such Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a "qualified
independent underwriter" (as defined in such Rule 2720) to participate in
the preparation of the Registration Statement, to exercise usual standards
of due diligence with respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities;
14
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6
hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements
of such Rules.
(v) The Company shall use its 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 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 Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
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 (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Participating Broker-Dealer), the directors, officers,
employees and agents of each such Holder and each person who controls any such
Holder 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 any Registration Statement as originally filed
or in any amendment thereof, 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 the statements therein 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 (i) the Company will not be liable in any 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 any such Holder or
Initial Purchaser specifically for inclusion therein and (ii) with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any preliminary Prospectus, the indemnity agreement contained in this subsection
shall not inure to the benefit of any Holder, Initial Purchaser or Participating
Broker-Dealer, as the case may be, from whom the person asserting such losses,
claims, damages or liabilities purchased the Securities or New Securities
concerned if a Prospectus relating to such Securities or New Securities was
required to be delivered by such Holder, Initial Purchaser or Participating
Broker-Dealer under the Act in connection with such purchase and any such loss,
claim, damage or liability of such Holder, Initial Purchaser or Participating
Broker-Dealer results from the fact that there was not sent of given to such
person, at or prior to the written confirmation of the sale of such Securities
or New Securities to such person a copy of the final Prospectus if the Company
had previously furnished copies thereof to such Holder, Initial Purchaser or
Participating Broker-Dealer and such untrue statement or omission or alleged
untrue
15
statement or omission was corrected in the final Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute as provided in
Section 6(d) to Losses of each underwriter 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 Initial Purchasers 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 each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Participating Broker-Dealer)
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
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 of notice of the commencement of any action or proceeding, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, 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 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 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 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 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 satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or proceeding; 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
16
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, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 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 Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security 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, as set forth on the cover page of the Final
Memorandum, 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 (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) 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 Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final
Memorandum, 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 alleged untrue statement or omission 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
17
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 termination or cancellation of this Agreement or any
investigation made by or on behalf of any Holder or the Company or any of the
directors, officers, employees, agents or controlling persons referred to in
this Section 6 hereof, and will survive the sale by a Holder of Securities or
New Securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, 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 at least a majority of the then outstanding aggregate
principal amount of Securities (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities); provided
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), 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.
10. 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, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with a copy in like manner to each of
Xxxxxxx Xxxxx Xxxxxx Inc. and ABN AMRO Incorporated.
18
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, 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.
12. Counterparts. This Agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. 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.
15. Severability. In the event that any one or 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.
16. Securities Held by the Company and its Affiliates. 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 shall be
disregarded and deemed not to be outstanding in determining whether such consent
or approval was given by the Holders of such required percentage.
17. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation (and any successor entity), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to this Agreement that may be instituted in any federal or state court
in the State of New York or brought under federal or state securities laws, and
acknowledges that CT Corporation has accepted such designation, (ii) submits to
the nonexclusive jurisdiction of any such court in any such suit or proceeding,
and (iii) agrees that service of process upon CT Corporation and written notice
of said service to the Company shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees
19
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 of CT Corporation in full force and effect so long as any of the
Securities shall be outstanding. To the extent that the Company may have or
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.
20
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 among the
Company and the several Initial Purchasers.
Very truly yours,
HQI TRANSELEC CHILE S.A.,
By: /s/ Xxxxxxxxx Xxxxxxxx Ihnen
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx Ihnen
Title: Chief Executive Officer
By: /s/ Real Xxxx-Hus
-----------------------------------------
Name: Real Xxxx-Hus
Title: Chief Financial Officer
21
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
By: XXXXXXX XXXXX BARNEY INC.
Acting on behalf of itself and the
several Initial Purchasers
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
By: ABN AMRO Incorporated
Acting on behalf of itself and the
several Initial Purchasers
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
22
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 Securities 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 date the
Exchange Offer is consummated (the "Expiration Date") and ending on the close of
business 180 days after the Expiration Date it will make this Prospectus
available upon request to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution".
23
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".
24
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. We have agreed that,
starting on the Expiration Date and ending on the close of business 180 days
after the Expiration Date, we will make this Prospectus, as amended or
supplemented, available upon request to any Broker-Dealer for use in connection
with any such resale. In addition, until [ ], 20[ ] (90 days after the
effectiveness of the registration statement), all dealers effecting transactions
in the New Securities may be required to deliver a prospectus.
We 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 Securities Act and any profit resulting
from 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 Securities 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 Securities
Act.
For a period of 180 days after the Expiration Date, we 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. We have agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders 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 Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508. S-K 502(b) legend must appear on the back cover.]
25
ANNEX D
Rider A
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name: __________________________________
Address: __________________________________
__________________________________
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. 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 Securities Act.
