[CREDIT SUISSE LOGO] Exhibit 10.12
December 20, 2002
The Special Committee of the Board of Directors
Xxxxxxxxx Holding Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Dear Xxxxx:
This letter agreement (the "Agreement") will confirm the understanding
between the Special Committee (the "Special Committee") of the Board of
Directors of Xxxxxxxxx Holding Corporation ("DHC," and together with its
subsidiaries, the "Company") and Credit Suisse First Boston Corporation and its
affiliates, successors and assigns, as appropriate ("CSFB" or "we"), pursuant to
which the Special Committee has retained CSFB to serve as its financial advisor,
on the terms and subject to the conditions set forth herein, in connection with
Restructuring Transactions and other matters referred to herein.
1. Certain Definitions. For the purposes of this Agreement, all defined
references shall have the meanings as set forth herein (including the
schedules hereto).
2. Services. The Special Committee hereby retains CSFB, and CSFB agrees to
act, as financial advisor to the Special Committee, and, if appropriate
and if requested by the Special Committee during the period prior to the
Plan Presentation (as defined below), the Company and DHC's wholly-owned
subsidiary, American Commercial Lines LLC (separately, and together with
its subsidiaries and AC Lines LLC and American Commercial Lines Holdings
LLC, "ACL"), in connection with all Restructuring Transactions and any
other matters referred to herein. As used herein, "Restructuring
Transaction" shall not include any sales of ACL stock or assets or ACL
purchases of assets from third parties. As part of this engagement, CSFB
will, as requested and appropriate:
(a) assist and provide advisory and analytical support to the Special
Committee and, as appropriate upon the Special Committee's request,
the Company and ACL, in developing and evaluating a restructuring
plan with respect to ACL (an "ACL
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Page 2
Restructuring Plan") to be presented on December 27, 2002 (the "Plan
Presentation") to the lenders under the Bank Facility (the "Bank
Lenders");
(b) after December 27, 2002, advise the Special Committee, as
appropriate upon the Special Committee's request, with respect to
any amendments or updates to the ACL Restructuring Plan;
(c) if requested by the Special Committee and appropriate and
customarily rendered by CSFB and consented to by CSFB in its sole
discretion, render an opinion as to the fairness from a financial
point of view to the Company of the consideration to be received or
paid, as the case may be, in a proposed Restructuring Transaction
that is the type of transaction for which CSFB customarily renders
fairness opinions; provided, however, that the Company, Special
Committee and/or ACL shall retain their own legal counsel and
accountants for legal and tax advice. If we are requested to and it
is appropriate and we agree to render an opinion, the nature and
scope of our analysis as well as the form and substance of our
opinion shall be such as we deem appropriate. If requested by you,
our opinion shall be delivered in writing; and
(d) perform such other financial advisory services as CSFB and the
Special Committee may from time to time agree upon.
3. Compensation. As compensation for services rendered and to be rendered
hereunder by CSFB, the Company and ACL agree, subject to the provisions of
Section 3 below, to jointly and severally pay CSFB (or cause CSFB to be
paid) non-refundable cash fees as follows:
(a) If ACL completes a Restructuring Transaction, a transaction fee (the
"Restructuring Fee"), payable immediately in immediately available
funds upon completion of the first Restructuring Transaction, equal
to $1,800,000. CSFB's engagement hereunder shall terminate upon the
payment of such Restructuring Fee;
(b) A fee of $1,000,000 (the "Opinion Fee") payable to CSFB upon
rendering of an opinion, if any, pursuant to Section 2(b), to the
Special Committee. The Opinion Fee will be fully creditable (to the
extent paid) against the Restructuring Fee; and
(c) In addition to the compensation to be paid to CSFB as provided
above, and without regard to whether any Restructuring Transaction
is consummated, the Company and ACL shall jointly and severally pay
to, or on behalf of CSFB, all out-of-pocket expenses (including all
fees and expenses of CSFB's counsel if any, and any other advisor
retained by CSFB (it being understood that the retention of any such
advisor, other than legal counsel, will be made with the prior
approval of the
Xxxxxxxxx Holding Corporation December 20, 2002
Page 3
Company, which approval shall not be unreasonably withheld))
incurred by CSFB in connection with its services to be rendered
hereunder.
4. Termination or Resignation. Subject to Section 9 hereof, CSFB's engagement
hereunder may be terminated at any time by either CSFB or the Special
Committee upon ten days' prior written notice thereof to the other party;
provided, however, that in the event of any termination or expiration of
CSFB's engagement hereunder, if at any time prior to the expiration of 12
months after any such termination or expiration (the "Extended Term") the
Company or any Related Entity, including ACL, proceeds with any
Restructuring Transaction, CSFB will continue to be entitled to receive
the full amount of compensation provided for in Section 3 hereof as if
CSFB had served as financial advisor or in any other specified role herein
in connection therewith as though this Agreement had not been terminated
or expired; and provided further that no termination or expiration of
CSFB's engagement hereunder shall affect the Company's and ACL's
obligations to jointly and severally pay CSFB promptly all fees accrued
prior to such termination or expiration and reimburse all of CSFB's
out-of-pocket expenses as described above, and to indemnify CSFB and
certain related persons and entities as provided in Schedule I, and during
the Extended Term only, the Company's obligations pursuant to Section 3
hereof.
5. Indemnity. As CSFB will be acting on behalf of the Special Committee, the
Company and ACL, as appropriate and if requested by the Special Committee,
the Company and ACL agree to indemnify the Indemnified Persons as set
forth in Schedule I hereto, which is incorporated herein and made a part
hereof.
6. Representations and Warranties of Company. The Company and ACL represent
and warrant to CSFB that at the commencement, throughout the continuance,
and at the consummation of each Restructuring Transaction
(a) Each of the Offer Documents will comply in all material respects
with the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Trust Indenture Act of 1939, as amended (the "TIA"
and collectively with the Securities Act and the Exchange Act, the
"Acts"), as such Acts may be applicable, and in each case the
applicable rules and regulations of the Securities and Exchange
Commission (the "Commission" or "SEC") thereunder, and with all
material applicable rules or regulations of any governmental or
regulatory authority or body, including applicable Blue Sky or
similar securities laws or statutes, and no consent or approval of,
or filing with, any governmental or regulatory authority or body is
required in connection with the commencement or consummation of any
such transaction, other than those consents or approvals which will
have been obtained or any filing which will have been made prior to
the consummation of each such transaction and other than notice
filings
Xxxxxxxxx Holding Corporation December 20, 2002
Page 4
which may be made after the consummation of such transaction without
any adverse effect upon the Company and/or any Related Entity,
including ACL;
(b) None of the Offer Documents and no other report, filing, document,
release or communication published or filed by or on behalf of the
Company or any Related Entity, including ACL, in connection with any
of such transactions will 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;
(c) Any new securities offered in consideration of any Old Securities
("New Securities") that are debt instruments (the "New Debt
Securities"), if any, and the indentures pertaining to the New Debt
Securities and any supplemental indentures pertaining to any
amendments to the Old Securities (together, the "Indentures") will
be duly authorized by the Company and any other appropriate Related
Entity, and when the Indentures are duly executed in accordance with
such authorization and when the New Securities are issued, the
Indentures and the New Debt Securities will be the legal, valid and
binding obligations of the Company and/or any appropriate Related
Entity, enforceable against the Company and/or any appropriate
Related Entity in accordance with their respective terms, except
that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general
principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law), and each of the New Securities
and the Indentures, if any, will conform to the description thereof
in the Offer Documents in all material respects;
(d) The New Securities that are capital stock, if any, will be duly
authorized by the Company and/or any Related Entity, including ACL
and, when issued, will be validly issued, fully paid and
non-assessable;
(e) The New Debt Securities, if any, and the Indentures, if any, will
comply in all material respects with the TIA;
(f) The issuance of the New Securities and the consummation of the
transactions contemplated by the Offer Documents will not result in
a breach of any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under, the
Company's charter or bylaws or any material bond, note, debenture or
other evidence of indebtedness or any material indenture, mortgage,
deed of trust or other agreement or instrument to which the Company
and/or any Related Entity, including ACL is a party or by which it
or any of them is bound, or any order of any court or governmental
agency or authority entered in any proceeding to which the
Xxxxxxxxx Holding Corporation December 20, 2002
Page 5
Company and/or any Related Entity, including ACL was or is a party
or by which it or any of them is bound, except as could not, singly
or in the aggregate, have a material adverse effect on the
properties, business, results of operations or condition (financial
or otherwise) of the Company, taken as a whole;
(g) This Agreement will be duly authorized and validly executed and
delivered by the Company, ACL and the Special Committee and will
constitute a legal, valid and binding agreement of the Company, ACL
and the Special Committee enforceable against the Company and ACL in
accordance with its terms, except that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law)
and except as rights to indemnification and contribution under this
Agreement may be limited by applicable law; and
(h) In connection with any Restructuring Transaction purported by the
Company to be made pursuant to a 3(a)(9) Offer, the Company has not
paid and will not pay any commission or other remuneration, directly
or indirectly, for soliciting or recommending such 3(a)(9) Offer to
any soliciting broker, dealer, salesman, agent, employee or director
of the Company, or any other person involved in any way on behalf of
the Company in conflict with such Section 3(a)(9).
7. Further Covenants of the Company. The Company, ACL and the Special
Committee agree as follows:
(a) No advice or opinion rendered by CSFB, whether formal or informal,
may be disclosed, in whole or in part, or summarized, excerpted from
or otherwise referred to without our prior written consent, which
shall not be unreasonably withheld or delayed. In addition, neither
CSFB nor the terms of this engagement may be otherwise referred to
without CSFB's prior written consent, which shall not be
unreasonably withheld or delayed. The obligations of the Company,
ACL and the Special Committee pursuant to this paragraph shall
survive any termination of this Agreement or CSFB's engagement
hereunder;
(b) In connection with CSFB's activities hereunder, the Company, ACL,
and the Special Committee agree to furnish CSFB with all information
concerning the Company and ACL, that CSFB reasonably deems
appropriate and agrees to provide CSFB with reasonable access to its
accountants, counsel, consultants and other appropriate agents and
representatives. The Company, ACL and the Special Committee
Xxxxxxxxx Holding Corporation December 20, 2002
Page 6
acknowledge that CSFB may rely upon the completeness and accuracy of
information and data furnished to it by the Company's officers,
directors, employees, agents and representatives without an
independent verification of such information and data or an
appraisal of the Company's assets;
(c) The Company, ACL and the Special Committee acknowledge and agree
that CSFB has been retained solely to provide the advice or services
set forth in this Agreement. CSFB shall act as an independent
contractor, and any duties of CSFB arising out of its engagement
hereunder shall be owed solely to the Special Committee and to the
Company and ACL, if CSFB provides services to the Company and ACL,
upon request of the Special Committee;
(d) If this Agreement becomes subject to approval by a United States
Bankruptcy Court, concurrently with the filing of a chapter 11
petition (if applicable) the Company shall file a motion to approve
the terms and conditions of this Agreement. The Company shall
further act in good faith to obtain a hearing date as soon as
practicable, subject to the Court's calendar, for approval of the
terms and conditions of this Agreement, and shall further at such
hearing use its best efforts to obtain approval of the terms and
conditions of this Agreement; and
(e) Nothing contained in this Agreement is intended to or shall impose
or create any liability upon any officer or director of Company or
ACL, or any person who is a member or ex officio member of the
Special Committee for any fee, compensation, expense or
indemnification liability whatever.
8. Confidentiality. Except to the extent authorized by the Special Committee,
the Company, or ACL or required by any Federal or state law, rule or
regulation or any decision or order of any court or regulatory authority,
CSFB agrees that it will refrain from disclosing to any person, other than
to holders of the Old Securities and their affiliates, representatives and
agents and other than to agents, attorneys, accountants, employees,
officers, and directors of CSFB who need to know the information in
connection with CSFB's engagement hereunder, any confidential information
which has not become public (other than through disclosure in violation of
this Section 8), about the Company or ACL received by CSFB from the
Company, ACL or their respective agents, attorneys or accountants in
connection with the services rendered hereunder.
9. Survival of Certain Provisions. The compensation and expense reimbursement
provisions contained in Section 3,the termination provisions contained in
Section 4, this Section 9, the indemnity and contribution agreements
contained in Section 5 and Schedule I of this Agreement and the
representations and warranties of the Company contained in Section 6 of
this Agreement shall remain operative and in full force and effect
regardless of (a) any
Xxxxxxxxx Holding Corporation December 20, 2002
Page 7
investigation made by or on behalf of CSFB or by or on behalf of any
affiliate of CSFB, any Indemnified Person, or any person controlling any
of them, (b) consummation of any Restructuring Transaction, or (c) any
termination or expiration of this Agreement, and shall be binding upon,
and shall inure to the benefit of, any successors, assigns, heirs and
personal representatives of the Special Committee, the Company, ACL, CSFB,
the Indemnified Persons and any such person.
10. Notices. Notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be mailed or delivered to the Special
Committee at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X.
Xxxxx and to CSFB at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX
00000, Attention: Xxxxx Xxxxxxxxx.
11. Construction. This Agreement incorporates the entire understanding of the
parties and supersedes all previous agreements and shall be governed by,
and construed in accordance with, the laws of the State of New York as
applied to contracts made and performed in such State, without regard to
principles of conflict of laws. Each of CSFB, the Company and ACL
irrevocably and unconditionally submits to the exclusive jurisdiction of
any State or Federal court sitting in New York City over any suit, action
or proceeding arising out of or relating to this Agreement.
12. Severability. Any determination that any provision of this Agreement may
be, or is, unenforceable shall not affect the enforceability of the
remainder of this Agreement.
13. Headings. The section headings in this Agreement have been inserted as a
matter of convenience for reference and are not an effective part of this
Agreement.
14. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
15. Third Party Beneficiaries. This Agreement has been and is made solely for
the benefit of the Special Committee, ACL, the Company, CSFB and the other
Indemnified Persons referred to in Section 4 and Schedule I hereof and
their respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement.
16. Succession. This Agreement shall be binding upon and inure to the benefit
of the Special Committee, ACL, the Company, CSFB, the Indemnified Persons
and their respective successors, assigns, heirs and personal
representatives.
17. Advertisements. The Company agrees that CSFB shall have the right to place
advertisements in financial and other newspapers and journals at its own
expense describing their services to the Special Committee, the Company
and ACL hereunder; provided, that (i)
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Page 8
CSFB shall have submitted a copy of any such proposed advertisement to the
Company for its prior approval, which approval shall not be unreasonably
withheld or delayed and (ii) the publication of such advertisement shall
comply with applicable law.
18. Acknowledgements. CSFB is a full service securities firm engaged in
securities trading and brokerage activities as well as investment banking
and financial advisory services. In the ordinary course of our trading and
brokerage activities, CSFB or its affiliates may hold positions, for its
own account or the accounts of customers, in equity, debt or other
securities of the Company or any other company that may be involved in the
matters contemplated by this Agreement.
Xxxxxxxxx Holding Corporation December 20, 2002
Page 9
If the foregoing terms correctly set forth our agreement, please confirm this by
signing and returning to CSFB the duplicate copy of this letter. Thereupon this
letter, as signed in counterpart, shall constitute our agreement on the subject
matter herein.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Xxxxx Xxxxxxxxx
-------------------
Xxxxx Xxxxxxxxx
Director
Confirmed and Agreed to:
SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF XXXXXXXXX HOLDING CORPORATION
By:/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
XXXXXXXXX HOLDING CORPORATION
By:/s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Executive VP and General Counsel
AMERICAN COMMERCIAL LINES LLC
By:/s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
SCHEDULE I
This Schedule I is a part of and is incorporated into that certain letter
agreement (together, the "Agreement"), dated December 20, 2002 by and between
the Special Committee of the Board of Directors of Xxxxxxxxx Holding
Corporation, Xxxxxxxxx Holding Corporation ("DHC"), American Commercial Lines
LLC ("ACL" and collectively with DHC, the Company") and Credit Suisse First
Boston Corporation ("CSFB").
The Company agrees to indemnify and hold harmless CSFB, its affiliates and
its parent and its affiliates, and the respective directors, officers, agents
and employees of CSFB, its affiliates and its parent and its affiliates (CSFB
and each such entity or person, an "Indemnified Person") from and against any
losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively "Liabilities"), and will reimburse each Indemnified Person for all
fees and expenses (including the reasonable fees and expenses of counsel)
(collectively, "Expenses") as they are incurred in investigating, preparing,
pursuing or defending any claim, action, proceeding or investigation, whether or
not in connection with pending or threatened litigation and whether or not any
Indemnified Person is a party (collectively, "Actions"), (i) caused by, or
arising out of or in connection with, any untrue statement or alleged untrue
statement of a material fact contained in the offer documents referred to in the
agreement (including any amendments thereof and supplements thereto) ("Offer
Documents") or 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 (other than untrue statements or
alleged untrue statements in, or omissions or alleged omissions from,
information relating to an Indemnified Person furnished in writing by or on
behalf of such Indemnified Person expressly for use in the Offer Documents) or
(ii) otherwise arising out of or in connection with advice or services rendered
or to be rendered by any Indemnified Person pursuant to this Agreement, the
transactions contemplated hereby or any Indemnified Person's actions or
inactions in connection with any such advice, services or transactions; provided
that, in the case of clause (ii) only, the Company will not be responsible for
any Liabilities or Expenses of any Indemnified Person to the extent such
Liabilities or Expenses are determined by a judgment of a court of competent
jurisdiction which is no longer subject to appeal or further review to have
resulted primarily from such Indemnified Person's gross negligence or willful
misconduct in connection with any of the advice, actions, inactions or services
referred to above.
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this agreement, such Indemnified Person shall promptly notify the Company
in writing; provided that failure so to notify the Company shall not relieve the
Company from any liability which the Company may have on account of this
indemnity or otherwise, except to the extent the Company shall have been
materially prejudiced by such failure. The Company may assume the defense of any
such Action including the employment of counsel reasonably satisfactory to CSFB.
Any Indemnified Person shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless: (i) the Company has failed promptly
to assume the defense and employ counsel or (ii) the named parties to any such
Action (including any impleaded parties) include such Indemnified Person and the
Company, and such Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to the Company; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of
more than one firm of separate counsel in connection with any Action in the same
jurisdiction, in addition to any local counsel. The Company shall not be liable
for any settlement of any Action effected without its written consent (which
shall not be unreasonably withheld). In addition, the Company will not, without
prior written consent of CSFB (which shall not be unreasonably withheld),
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all Liabilities arising out of such Action.
In the event that the foregoing indemnity is unavailable to an Indemnified
Person other than in accordance with this Agreement, the Company shall
contribute to the Liabilities and Expenses paid or payable by such Indemnified
Person in such proportion as is appropriate to reflect (i) the relative benefits
to the Company and its shareholders, on the one hand, and to CSFB, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation
provided by the immediately preceding clause is not permitted by the applicable
law, not only such relative benefits but also the relative fault of the Company,
on the one hand, and CSFB, on the other hand, in connection with the matters as
to which such Liabilities or Expenses relate, as well as any other relevant
equitable considerations; provided that in no event shall the Company contribute
less than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by CSFB pursuant to this Agreement. For
purposes of this paragraph, the relative benefits to the Company and its
shareholders, on the one hand, and to CSFB, on the other hand, of the matters
contemplated by this Agreement shall be deemed to be in the same proportion as
(a) the total value paid or contemplated to be paid or received or contemplated
to be received by the Company or the Company's shareholders, as the case may be,
in the transaction or transactions that are within the scope of this Agreement,
whether or not any such transaction is consummated, bears to (b) the fees paid
to CSFB under this Agreement.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with advice or services rendered or to be rendered
by any Indemnified Person pursuant to this agreement, the transactions
contemplated hereby or any Indemnified Person's actions or inactions in
connection with any such advice, services or transactions except to the extent
that Liabilities (and related Expenses) of the Company are determined by a
judgment of a court of competent jurisdiction which
is no longer subject to appeal or further review to have resulted primarily from
such Indemnified Person's gross negligence or willful misconduct in connection
with any such advice, actions, inactions or services in connection with
subsection (ii) in the second paragraph of this Schedule I.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall be joint and several shall apply to any modification of
this Agreement and shall remain in full force and effect regardless of any
termination of, or the completion of any Indemnified Person's services under or
in connection with, this Agreement. Anything else in this Agreement
notwithstanding, neither the reimbursement, indemnity and contribution
obligations of the Company, nor any other obligations of the Company, set forth
herein shall apply with respect to any Liabilities or Expenses arising out of
the securities trading and brokerage activities referred to in Section 18 of the
Agreement.
SCHEDULE II
(a) the term "Old Securities" means (i) the senior secured credit facility
entered into by American Commercial Lines LLC and American Commercial
Lines Holdings LLC pursuant to a credit agreement dated June 30, 1998, as
amended (the "Bank Facility"), and (ii) the 11 -1/4% Senior Notes due
January 1, 2008 and the 12% Pay-In-Kind Senior Subordinated Notes due July
1, 2008 issued by American Commercial Lines LLC and ACL Capital Corp.;
(b) the term "Related Entities" shall mean each subsidiary and affiliate of
the Company as of the date hereof and each corporation, partnership, or
other entity formed after the date hereof by or on behalf of the Company
in connection with, or for the purpose of effecting a Restructuring
Transaction;
(c) the term "Restructuring Transactions" means, in one or a series of
transactions, whether executed pursuant to a bankruptcy proceeding or not,
any complete and partial acquisitions, refinancings, assumptions by a
third party or third parties, repurchases, restructurings of, or any
amendments or modifications to, any of the Old Securities by or on behalf
of the Company and/or any Related Entity, whether or not involving an
offer to purchase or exchange for cash, property, securities, indebtedness
or other consideration, or a solicitation of consents, waivers or
authorizations with respect thereto; and
(d) the term "Offer Documents" means each document that is filed with the
Commission or that is otherwise made publicly available or that is sent or
given to the holders of Old Securities in connection with any
Restructuring Transaction (which may include, but is not limited to, the
following: (i) offering circular(s), sales memoranda, private placement
memoranda or other selling material, explanatory statement(s) filed with
the SEC under the Securities Act, (ii) each registration statement,
preliminary and final prospectus required to be filed with the SEC, (iii)
each document required to be filed with the SEC pursuant to the provisions
of the Exchange Act, pertaining to any Restructuring Transaction, and (iv)
each appendix, attachment, amendment or supplement to any of the foregoing
and all related documents, including but not limited to, each related
letter of transmittal and each related letter to holders of Old
Securities).
