Exhibit 4.1
LEVEL 3 FINANCING, INC.
12.25% Senior Notes due 2013
REGISTRATION AGREEMENT
New York, New York
April 6, 2006
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse Securities (USA) LLC
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
In care of:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
North Tower
250 Vesey Street
New York, New York 10080
Ladies and Gentlemen:
Level 3 Financing, Inc., a Delaware company (the "Issuer"), proposes to
issue and sell to certain purchasers (the "Purchasers"), upon the terms set
forth in a purchase agreement dated April 3, 2006, (the "Purchase Agreement"),
$300,000,000 aggregate principal amount of its 12.25% Senior Notes due 2013 (the
"Original 2013 Notes") (such sale, the "Initial Placement"), to be guaranteed on
an unsecured unsubordinated basis by Level 3 Communications, Inc., the direct
parent company of the Issuer ("Parent"). As an inducement to the Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Issuer and Parent jointly and severally agree with
you, (i) for your benefit and the benefit of the other Purchasers and (ii) for
the benefit of the holders from time to time of the Original 2013 Notes
(including you and the other Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
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"Affiliate" of any specified person means any other person which, 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 means 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" have meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means 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
2013 Notes covered by such Exchange Offer Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference
therein.
"Exchange Offer Registration Period" means 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.
"Exchange Offer Registration Statement" means a registration statement of
the Issuer and Parent on an appropriate form under the Securities Act with
respect to the Registered Exchange Offer, all 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.
"Exchanging Dealer" means any Holder (which may include the Purchasers)
which is a broker-dealer electing to exchange Original 2013 Notes acquired for
its own account as a result of market-making activities or other trading
activities for New 2013 Notes.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Original 2013 Notes and the
New 2013 Notes, dated as of March 14, 2006, among Parent, the Issuer and The
Bank of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an offering of securities under a
Shelf Registration Statement.
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"New 2013 Notes" means debt securities of the Issuer identical in all
material respects to the Original 2013 Notes (except that the interest rate
step-up provisions and the transfer restrictions will be modified or eliminated,
as appropriate), to be issued under the Indenture.
"Original 2013 Notes" has the meaning set forth in the preamble hereto.
"Prospectus" means 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 Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Original 2013 Notes or the New 2013 Notes,
covered by such Registration Statement, and all amendments and supplements to
the Prospectus, including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Original 2013 Notes, a
like principal amount of the New 2013 Notes.
"Registration Securities" has the meaning set forth in Section 3(a) hereof.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Original 2013 Notes or the
New 2013 Notes pursuant to the provisions of this Agreement, all amendments and
supplements to such registration statement, including, without limitation,
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
Parent and the Issuer pursuant to the provisions of Section 3 hereof which
covers some of or all the Original 2013 Notes or New 2013 Notes, as applicable,
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the Commission, all 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.
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"Trustee" means the trustee with respect to the Original 2013 Notes and the
New 2013 Notes under the Indenture.
"2013 Majority Holders" means the Holders of a majority of the aggregate
principal amount of the Original 2013 Notes and the New 2013 Notes registered
under a Registration Statement.
"underwriter" means any underwriter of securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New 2013 Notes by Exchanging
Dealers; Private Exchange.
(a) The Issuer and Parent shall prepare and, not later than June 12, 2006,
shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Issuer and Parent shall use their
commercially reasonable efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act by October 10, 2006.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer and Parent shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Original 2013 Notes for New 2013 Notes (assuming that such
Original 2013 Notes do not constitute a portion of an unsold allotment acquired
by such Holder directly from the Issuer, such Holder is not an Affiliate of the
Issuer or Parent, such Holder acquires the New 2013 Notes in the ordinary course
of its business and such Holder has no arrangements with any person to
participate in the distribution of the New 2013 Notes) to trade such New 2013
Notes from and after their receipt without any limitations or restrictions under
the Securities 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 Issuer and Parent
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 after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all material respects with all applicable laws.
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(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuer and Parent shall:
(i) accept for exchange all Original 2013 Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Original 2013 Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder
of Original 2013 Notes, a principal amount of New 2013 Notes equal to the
principal amount of the Original 2013 Notes of such Holder so accepted for
exchange.
(e) The Purchasers, the Issuer and Parent acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any New
2013 Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Original 2013 Notes acquired for its own account
as a result of market-making activities or other trading activities.
Accordingly, the Issuer and Parent shall:
(i) include the information set forth in Annex A hereto on the cover 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 forming a part of the Exchange Offer Registration
Statement, and in Annex D hereto in the Letter of Transmittal delivered pursuant
to the Registered Exchange Offer (it being understood that a Holder's
participation in the Exchange Offer is conditioned on the Holder, by executing
and returning the Letter of Transmittal, representing in writing to the Issuer
as set forth in Rider B of Annex D hereto); and
(ii) use commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective under the Securities Act during
the Exchange Offer Registration Period for delivery by Exchanging Dealers in
connection with sales of New 2013 Notes received pursuant to the Registered
Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that any Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Original 2013 Notes constituting any portion of an unsold allotment, at the
request of such Purchaser, the Issuer and Parent shall issue and deliver to such
Purchaser or the party purchasing New 2013 Notes registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Purchaser,
in exchange for such Original 2013 Notes, a like principal amount of New 2013
Notes. The Issuer and Parent shall seek
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to cause the CUSIP Service Bureau to issue the same CUSIP number for such New
2013 Notes as for New 2013 Notes issued pursuant to the Registered Exchange
Offer.
(g) Parent and the Issuer may include in the Exchange Offer Registration
Statement (i) up to $150,000,000 aggregate principal amount of the Issuer's
Floating Rate Senior Notes due 2011 originally issued on March 14, 2006 (the
"Original Floating Rate Notes"), guaranteed by Parent, to be exchanged for debt
securities of the Issuer identical in all material respects to the Original
Floating Rate Notes (except that the interest rate step-up provisions and the
transfer restrictions will be modified or eliminated, as appropriate) (the "New
Floating Rate Notes") and (ii) up to $250,000,000 aggregate principal amount of
the Issuer's 12.25% Senior Notes due 2013 originally issued on March 14, 2006
(the "Outstanding 2013 Notes"), guaranteed by Parent, to be exchanged for New
2013 Notes.
3. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Issuer and Parent
determine upon advice of outside counsel that they are not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof, or (ii) for
any other reason the Exchange Offer Registration Statement is not declared
effective by October 10, 2006 or the Registered Exchange Offer is not
consummated within 30 business days following the initial effectiveness date of
the Exchange Offer Registration Statement, or (iii) any Purchaser so requests
with respect to Original 2013 Notes (or any New 2013 Notes received pursuant to
Section 2(f)) not eligible to be exchanged for New 2013 Notes in a Registered
Exchange Offer or, in the case of any Purchaser that participates in any
Registered Exchange Offer, such Purchaser does not receive freely tradable New
2013 Notes, or (iv) any Holder (other than a Purchaser) is not eligible to
participate in the Registered Exchange Offer or (v) in the case of any such
Holder that participates in the Registered Exchange Offer, such Holder does not
receive freely tradable New 2013 Notes in exchange for tendered securities,
other than by reason of such Holder being an affiliate of the Issuer and Parent
within the meaning of the Securities Act (it being understood that, for purposes
of this Section 3, (x) the requirement that a Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Securities Act in connection with sales of New 2013 Notes acquired in
exchange for such Original 2013 Notes shall result in such New 2013 Notes being
not "freely tradeable" but (y) the requirement that an Exchanging Dealer deliver
a Prospectus in connection with sales of New 2013 Notes acquired in the
Registered Exchange Offer in exchange for Original 2013 Notes acquired as a
result of market-making activities or other trading activities shall not result
in such New 2013 Notes being not "freely tradeable"), the following provisions
shall apply:
(a) The Issuer and Parent shall as promptly as practicable (but in no event
more than the later of (i) June 12, 2006 or (ii) 45 days after so required or
requested pursuant to this Section 3), file with the Commission and thereafter
shall use their commercially reasonable efforts to cause to become effective
under the Securities Act, or, if permitted by Rule 430B under the Securities
Act, otherwise designate an existing
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registration statement filed with the Commission as, a Shelf Registration
Statement relating to the offer and sale of the Original 2013 Notes or the New
2013 Notes, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement (such Original 2013 Notes or New 2013 Notes, as
applicable, to be sold by such Holders under such Shelf Registration Statement
being referred to herein as "Registration Securities"); provided, however, that,
with respect to New 2013 Notes received by a Purchaser in exchange for Original
2013 Notes constituting any portion of an unsold allotment, the Issuer and
Parent 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 Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) 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. Unless the Shelf Registration
Statement is an automatic shelf registration statement (as defined in Rule 405
under the Securities Act), the Issuer and Parent shall include the information
required by Rule 430B(b)(2)(iii) under the Securities Act.
(b) The Issuer and Parent shall use their commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective 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 becomes effective or
is designated as such or such shorter period that will terminate when all the
Original 2013 Notes or New 2013 Notes, 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 Issuer and Parent shall be deemed not to have used their
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if the Issuer, or Parent
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 (i) such action is required by applicable law or (ii) such action is
taken by such party in good faith and for valid business reasons (not including
avoidance of the obligations of the Issuer and Parent hereunder), including the
acquisition or divestiture of assets, so long as the Issuer and Parent promptly
thereafter comply with the requirements of Section 4(k) hereof, if applicable.
(c) Parent and the Issuer may include in the Shelf Registration Statement
(i) up to $150,000,000 aggregate principal amount of the Original Floating Rate
Notes or the New Floating Rate Notes, as applicable, to be offered and sold 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 and (ii) up to $250,000,000 aggregate principal amount of the
Outstanding 2013 Notes or New 2013 Notes issued in exchange for Outstanding 2013
Notes, as applicable, to be offered and sold 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.
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4. 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) (i) The Issuer and Parent shall furnish to you, prior to the filing or
designation thereof with the Commission, a copy of any Exchange Offer
Registration Statement, each amendment thereof and each amendment or supplement,
if any, to the Prospectus included therein and shall use its commercially
reasonable efforts to reflect in each such document, when so filed or designated
with the Commission, such comments as you reasonably may propose.
(ii) The Issuer and Parent shall furnish to you, prior to the filing or
designation thereof with the Commission, a copy of any Shelf Registration
Statement, each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and shall use its commercially reasonable
efforts to reflect in each such document, when so filed or designated with the
Commission, such comments as any Holder whose securities are to be included in
such Shelf Registration Statement reasonably may propose.
(b) The Issuer and Parent 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
Securities Act and the rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective (or, in
the case of a previously filed registration statement that is effective at the
time it is designated as a Shelf Registration Statement, when it is so
designated), 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 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.
(c) (1) The Issuer and Parent shall advise you and, in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, and, if
requested by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been filed
(or, in the case of a previously filed registration statement designated as a
Shelf Registration Statement, when it is so designated) with the Commission and
when the Registration Statement or any post-effective amendment thereto has
become effective (or, in the case of a previously filed registration statement
that is effective at the time it is
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designated as a Shelf Registration Statement, when it is so designated);
and
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus included therein or for additional
information.
(2) The Issuer and Parent shall advise you and, in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, and, in the
case of an Exchange Offer Registration Statement, any Exchanging Dealer which
has provided in writing to the Issuer a telephone or facsimile number and
address for notices, and, if requested by you or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) 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;
(ii) of the receipt by the Issuer or Parent of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires the making of any changes
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 (which advice shall be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes have been
made).
Each such Holder or Exchanging Dealer agrees by its acquisition of such
securities to be sold by such Holder or Exchanging Dealer, that, upon being so
advised by the Issuer or Parent of any event described in clause (iii) of this
paragraph (c)(2), such Holder or Exchanging Dealer will forthwith discontinue
disposition of such securities under such Registration Statement or Prospectus,
until such Holder's or Exchanging Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by paragraph 4(k) hereof, or
until it is advised in writing by the Issuer or Parent that the use of the
applicable Prospectus may be resumed.
(d) The Issuer and Parent shall use their commercially reasonable efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
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(e) The Issuer and Parent shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, any documents incorporated by
reference therein and all exhibits thereto (including those incorporated by
reference therein).
(f) The Issuer and Parent shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of 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; and each of the Issuer and Parent hereby consent 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.
(g) The Issuer and Parent shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if the Exchanging Dealer so requests in writing,
any documents incorporated by reference therein and all exhibits thereto
(including those incorporated by reference therein).
(h) The Issuer and Parent shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of New
2013 Notes received by it pursuant to the Registered Exchange Offer; and the
Issuer and Parent hereby consent to the use of the Prospectus or any amendment
or supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Issuer shall register or
qualify or cooperate with the Holders of securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the securities covered by such Registration Statement;
provided, however, that the Issuer will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
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(j) The Issuer and Parent shall cooperate with the Holders of Original 2013
Notes to facilitate the timely preparation and delivery of certificates
representing Original 2013 Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of securities
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii)
above, the Issuer and Parent shall promptly prepare a post-effective amendment
to any Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the 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.
(l) Not later than the effective date (or the designation date, in the case
of a previously filed registration statement that is effective at the time it is
designated as a Shelf Registration Statement) of any such Registration Statement
hereunder, the Issuer and Parent shall provide a CUSIP number for each of the
Original 2013 Notes or the New 2013 Notes, as the case may be, registered under
such Registration Statement, and provide the Trustee with printed certificates
for such Original 2013 Notes or New 2013 Notes, in a form, if requested by the
applicable Holder or Holder's counsel, eligible for deposit with The Depository
Trust Company or any successor thereto under the Indenture.
(m) The Issuer and Parent shall use their commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available to the security holders
of the Issuer a consolidated earnings statement (which need not be audited)
covering a twelve-month period commencing after the effective date (or the
designation date, in the case of a previously filed registration statement that
is effective at the time it is designated as a Shelf Registration Statement) of
the Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(n) The Issuer and Parent shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, on or prior to the effective date
(or the designation date, in the case of a previously filed registration
statement that is effective at the time it is designated as a Shelf Registration
Statement) of any Shelf Registration Statement or Exchange Offer Registration
Statement.
(o) The Issuer and Parent may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuer in writing
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such information regarding the Holder and the distribution of such securities as
the Issuer may from time to time reasonably require for inclusion in such
Registration Statement. The Issuer may exclude from any such Registration
Statement the securities of any such Holder who fails to furnish such
information within a reasonable time after receiving such request. Each Holder
as to which any Shelf Registration is being effected agrees to furnish promptly
to the Issuer all information required to be disclosed in order to make the
information previously furnished to the Issuer by such Holder not materially
misleading. Each Holder further agrees that, neither such Holder nor any
underwriter participating in any disposition pursuant to any Shelf Registration
Statement on such Holder's behalf, will make any offer relating to the
securities to be sold pursuant to such Shelf Registration Statement that would
constitute an issuer free writing prospectus (as defined in Rule 433 under the
Securities Act) or that would otherwise constitute a "free writing prospectus"
(as defined in Rule 405 under the Securities Act) required to be filed by the
Issuer and Parent with the Commission or retained by the Issuer and Parent under
Rule 433 of the Securities Act, unless it has obtained the prior written consent
of the Issuer and Parent (and except for as otherwise provided in any
underwriting agreement entered into by the Issuer and Parent and any such
underwriter).
(p) The Issuer and Parent shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and the 2013
Majority Holders reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(q) (i) In the case of any Shelf Registration Statement, the Issuer and
Parent shall enter into such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Original 2013 Notes, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 6 hereof (or such other provisions and procedures
acceptable to the 2013 Majority Holders and the Managing Underwriters, if any),
with respect to all parties to be indemnified pursuant to Section 6 hereof.
(ii) Without limiting in any way paragraph (q)(i), no Holder may
participate in any underwritten registration hereunder unless such Holder
(x) agrees to sell such Holder's securities to be covered by such registration
on the basis provided in any underwriting arrangements approved by the 2013
Majority Holders and the Managing Underwriters and (y) completes and executes in
a timely manner all customary questionnaires, powers of attorney, underwriting
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agreements and other documents reasonably required by the Issuer or the Managing
Underwriters in connection with such underwriting arrangements.
(r) In the case of any Shelf Registration Statement, the Issuer and Parent
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 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 Parent and its
subsidiaries reasonably requested by such person; (ii) cause the officers,
directors and employees of the Issuer and Parent to supply all relevant
information reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with any such Registration Statement
as is customary for due diligence examinations in connection with primary
underwritten offerings; provided, however, that any information that is
nonpublic 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 such Holders or any such underwriter, attorney,
accountant or agent may disclose to any and all persons, without limitation of
any kind, the U.S. tax treatment and U.S. tax structure of any transaction
contemplated therein and all materials of any kind (including opinions or other
tax analyses) that are provided to such Holders or any such underwriter,
attorney, accountant or agent relating to such U.S. tax treatment and U.S. tax
structure, other than any information for which nondisclosure is reasonably
necessary in order to comply with applicable securities laws; (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 an issuer to underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Issuer and Parent (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters; (v) obtain "cold comfort"
letters (or, in the case of any person that does not satisfy the conditions for
receipt of a "cold comfort" letter specified in Statement on Auditing Standards
No. 72, an "agreed-upon procedures" letter under Statement on Auditing Standards
No. 35) and updates thereof from the independent certified public accountants of
Parent (and, if necessary, any other independent certified public accountants of
any subsidiary of Parent or of any business acquired by Parent for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each
selling Holder of securities registered thereunder and the underwriters, if any,
in
14
customary form and 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
2013 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
Issuer and Parent. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 4(r) shall be performed (A) on the effective date (or
the designation date, in the case of a previously filed registration statement
that is effective at the time it is designated as a Shelf Registration
Statement) of such Registration Statement and each post-effective amendment
thereto and (B) at each closing under any underwriting or similar agreement as
and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the Issuer
and Parent shall (i) make reasonably available for inspection by each Purchaser,
and any attorney, accountant or other agent retained by such Purchaser, all
relevant financial and other records, pertinent corporate documents and
properties of Parent and its subsidiaries reasonably requested by such person;
(ii) cause the officers, directors and employees of the Issuer and Parent to
supply all relevant information reasonably requested by such Purchaser or any
such attorney, accountant or agent in connection with any such Registration
Statement as is customary for due diligence examinations in connection with
primary underwritten offerings; provided, however, that any information that is
nonpublic at the time of delivery of such information shall be kept confidential
by such 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 such Purchaser or any such attorney, accountant or agent may
disclose to any and all persons, without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of any transaction contemplated therein and all
materials of any kind (including opinions or other tax analyses) that are
provided to such Purchaser or any such attorney, accountant or agent relating to
such U.S. tax treatment and U.S. tax structure, other than any information for
which nondisclosure is reasonably necessary in order to comply with applicable
securities laws; (iii) make such representations and warranties to such
Purchaser, in form, substance and scope as are customarily made by an issuer to
underwriters in primary underwritten offerings; (iv) obtain opinions of counsel
to the Issuer and Parent (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to such Purchaser and its counsel),
addressed to such 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 Purchaser or its counsel; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
Parent (and, if
15
necessary, any other independent certified public accountants of any subsidiary
of Parent or of any business acquired by Parent for which financial statements
and financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to such 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 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 Purchaser or its counsel; and (vi) deliver
such documents and certificates as may be reasonably requested by such 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 4(s)
shall be performed (A) at the close of the Registered Exchange Offer and (B) on
the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
5. Registration Expenses. The Issuer and Parent shall jointly and severally
bear all expenses incurred in connection with the performance of their
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 (in addition to one local counsel in each
relevant jurisdiction) designated by the 2013 Majority Holders to act as counsel
for the Holders in connection therewith. Notwithstanding the foregoing, the
Holders of the securities being registered shall pay all agency or brokerage
fees and commissions and underwriting discounts and commissions attributable to
the sale of such securities and the fees and disbursements of any counsel or
other advisors or experts retained by such Holders (severally or jointly), other
than the counsel and experts specifically referred to above in this Section 5,
transfer taxes on resale of any of the securities by such Holders and any
advertising expenses incurred by or on behalf of such Holders in connection with
any offers they may make.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Issuer and Parent jointly and severally agree to
indemnify and hold harmless each Holder of securities covered thereby (including
each Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each other person, if any, who controls any
such Holder within the meaning of Section 15 of the Securities Act or Section 20
of 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
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement
16
thereto, or in any issuer free writing prospectus approved for use by the Issuer
and Parent, 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 the Issuer and
Parent 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 Issuer
or Parent by or on behalf of any such Holder specifically for inclusion therein;
provided further, however, that the indemnity agreement contained in this
Section 6(a) shall not inure to the benefit of any indemnified party to the
extent that it is determined by a final, non-appealable judgment that (i) a
preliminary Prospectus contained an untrue statement of a material fact or
omitted to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the sale to the
person asserting any such losses, claims, damages or liabilities was an initial
resale of securities by any Holder, (iii) any such loss, claim, damage or
liability of such indemnified party results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of any revised preliminary
Prospectus, the related Prospectus or the related Prospectus as amended or
supplemented in any case where such delivery is required by the Securities Act,
and the Issuer and Parent had previously furnished copies thereof to such Holder
and (iv) the revised preliminary Prospectus, the related Prospectus or the
related Prospectus as amended or supplemented corrected such untrue statement or
omission. This indemnity agreement will be in addition to any liability which
the Issuer and Parent may otherwise have.
The Issuer and Parent also jointly and severally agree to indemnify or
contribute to Losses (as defined below) of, as provided in Section 6(d), any
underwriters of Original 2013 Notes or New 2013 Notes registered under a Shelf
Registration Statement, their officers, directors, employees and agents and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the 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(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally and not
jointly agrees to indemnify and hold harmless the Issuer, Parent, each of their
directors and officers and each other person, if any, who controls the Issuer or
Parent within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Issuer
and Parent to each such Holder, but only with reference to written information
relating to such Holder furnished to the Issuer by or on
17
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, 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 and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel 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 (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
It is understood, however, that the Issuer and Parent shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Holders and controlling persons. An indemnifying party shall not be
liable under this Section 6 to any
18
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(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 the Issuer, Parent and the Holders, in lieu of
indemnifying such indemnified 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 the Issuer,
Parent and the Holders may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Issuer and Parent, on the one
hand, and by the Holders, 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 Purchaser or any subsequent Holder of any Original 2013 Note
or New 2013 Note be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Original 2013 Note, or in
the case of a New 2013 Note, applicable to the security which was exchangeable
into such New 2013 Note, as set forth in the Final Memorandum and in the
Purchase Agreement, 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 Issuer, Parent and the Holders severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuer and Parent, on the
one hand, and the Holders, 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 Issuer and Parent 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 in the Final Memorandum and
in the Purchase Agreement and (y) the total amount of additional interest which
the Issuer 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 Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth in the Final Memorandum and in the
Purchase Agreement, and benefits received by any other Holders shall be deemed
to be equal to the value of receiving Original 2013 Notes or New 2013 Notes, as
applicable, registered under the Securities 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 whether any alleged untrue statement or omission
relates to information provided by the Issuer and Parent, on the one hand, or by
Holders, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined
19
by pro rata allocation 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Securities 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 Issuer or Parent within the meaning of either the Securities Act or
the Exchange Act, each of their officers who shall have signed the Registration
Statement and each of their directors shall have the same rights to contribution
as the Issuer and Parent, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Purchaser, any other
Holder, the Issuer and Parent or any underwriter or any of the officers,
directors or controlling persons referred to in this Section 6, and will survive
the sale by a Holder of securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuer or Parent has, 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 limits the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) 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 Issuer has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Original 2013 Notes (or, after the consummation of any Exchange Offer
in accordance with Section 2 hereof, of New 2013 Notes); provided that, with
respect to any matter that directly or indirectly affects the rights of any
Purchaser hereunder, the Issuer shall obtain the written consent of each such
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 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
2013 Majority Holders, determined on the basis of securities being sold rather
than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile, or air courier guaranteeing overnight delivery:
20
(1) if to a Holder, at the most current address given by such Holder to the
Issuer in accordance with the provisions of this Section 7(c), 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 Merrill
Lynch, Pierce, Fenner & Smith Incorporated by facsimile (212-449-3207) and
confirmed by mail to it at Merrill Lynch World Headquarters, North Tower, World
Financial Center, New York, New York 10281-1201, Attention: Global Origination
Counsel;
(2) if to you, initially at the address set forth in the Purchase
Agreement; and
(3) if to the Issuer or Parent, initially at the address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Purchasers or the Issuer by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Successors and Assigns. 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
Issuer and Parent or subsequent Holders of Original 2013 Notes and/or New 2013
Notes. The Issuer and Parent hereby agree to extend the benefits of this
Agreement to any Holder of Original 2013 Notes and/or New 2013 Notes and any
such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
THE CONFLICT OF LAW PROVISIONS THEREOF).
(h) 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
21
be in any way impaired or affected thereby, it being intended that all the
rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) Securities Held by the Issuer or Parent, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Original
2013 Notes or New 2013 Notes is required hereunder, Original 2013 Notes or New
2013 Notes, as applicable, held by the Issuer, Parent or their Affiliates (other
than subsequent Holders of Original 2013 Notes or New 2013 Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Original 2013 Notes or New 2013 Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Termination. This Agreement shall automatically terminate, without any
further action on the part of the Issuer and Parent or the Purchasers, upon the
termination or cancellation of the Purchase Agreement prior to the Closing Date.
22
Please confirm that the foregoing correctly sets forth the agreement among
Parent, the Issuer and you.
Very truly yours,
Level 3 Financing, Inc.
By: /s/ Neil J. Eckstein
Name: Neil J. Eckstein
Title: Senior Vice President
Level 3 Communications, Inc.
By: /s/ Thomas C. Stortz
Name: Thomas C. Stortz
Title: Executive Vice President
23
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Credit Suisse Securities (USA) LLC
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Vikram Kaul
Name: Vikram Kaul
Title: Vice President
ANNEX A
Each broker-dealer that receives New 2013 Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such New 2013 Notes. 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 2013 Notes received in exchange for Original 2013 Notes
where such New 2013 Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Issuer and Parent have
agreed that, starting on the date hereof (the "Expiration Date") and ending on
the close of business on the day that is 180 days following the Expiration Date,
it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives New 2013 Notes for its own account in
exchange for Original 2013 Notes, where such Original 2013 Notes 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 2013 Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New 2013 Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such New 2013 Notes. The
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 2013 Notes received in
exchange for Original 2013 Notes where such Original 2013 Notes were acquired as
a result of market-making activities or other trading activities. Each of the
Issuer and Parent has agreed that, starting on the Expiration Date and ending on
the close of business on the day that is 180 days following the Expiration Date,
it will make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until ,
2006, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.*
Neither the Issuer nor Parent will receive any proceeds from any sale of
New 2013 Notes by broker-dealers. New 2013 Notes 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 2013 Notes 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
2013 Notes. Any broker-dealer that resells New 2013 Notes that were received by
it for its own account pursuant to the Registered Exchange Offer and any broker
or dealer that participates in a distribution of such New 2013 Notes may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit of any such resale of New 2013 Notes 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, the Issuer and Parent
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer and Parent have agreed to pay all
expenses incident to the Exchange Offer (other than the expenses of counsel for
the Holders of the Original 2013 Notes) other than commissions or concessions of
any brokers or
2
dealers and will indemnify the Holders of the Original 2013 Notes (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.]
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 2013 Notes in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New 2013 Notes
and it has no arrangements or understandings with any person to participate in a
distribution of the New 2013 Notes. If the undersigned is a broker-dealer that
will receive New 2013 Notes for its own account in exchange for Original 2013
Notes, it represents that the Original 2013 Notes to be exchanged for New 2013
Notes 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 2013 Notes; 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.
* In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer Prospectus.