REGISTRATION RIGHTS AGREEMENT by and among FairPoint Communications, Inc. and Banc of America Securities LLC Lehman Brothers Inc. Morgan Stanley & Co. Incorporated Dated as of March 31, 2008
Exhibit 4.3
by and among
FairPoint Communications, Inc.
and
Banc of America Securities LLC
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Dated as of March 31, 2008
This Registration Rights Agreement (this “Agreement”) is made and entered into as of March 31,
2008, by and among FairPoint Communications, Inc., a Delaware corporation (the “Company”), and Banc
of America Securities LLC (“Banc of America”), Xxxxxx Brothers Inc. (“Xxxxxx”) and Xxxxxx Xxxxxxx &
Co. (“Xxxxxx Xxxxxxx”) on behalf of the initial purchasers set forth on Schedule A of the Purchase
Agreement (as defined below) (collectively, the “Initial Purchasers”), each of whom has agreed to
purchase Northern New England SpinCo Inc.’s (“SpinCo”) 131/8% Senior Notes due 2018 (the “Initial
Securities”) pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March 26, 2008 (the “Purchase
Agreement”), among Spinco, the Company, the selling securityholders named therein (the “Selling
Securityholders”) and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii)
for the benefit of the holders from time to time of the Transfer Restricted Securities, including
the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Transfer
Restricted Securities, the Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(g) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture
of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of
Transfer Restricted Securities that were tendered by Holders thereof pursuant to the Exchange
Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Date: As defined in Section 3(a) hereto.
Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Transfer
Restricted Securities to certain “qualified institutional buyers,” as such term is defined in Rule
144A under the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the
Securities Act.
Exchange Securities: The 131/8% Senior Notes due 2018, of the same series under the Indenture
as the Initial Securities and attached thereto, to be issued to Holders in exchange for Transfer
Restricted Securities pursuant to this Agreement.
FINRA: Financial Industry Regulatory Authority, Inc.
Freely Tradable: Means, with respect to an Initial Security, an Initial Security that at any
time of determination (i) may be sold to the public in accordance with Rule 144 under the
Securities Act (“Rule 144”) by a person that is not an “affiliate” (as defined in Rule 144 under
the Securities Act) of the Company where no conditions of Rule 144 are then applicable (other than
the holding period requirement in paragraph (d) of Rule 144 so long as such holding period
requirement is satisfied at such time of determination) and (ii) does not bear any restrictive
legends relating to the Securities Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of March 31, 2008, by and between Spinco and U.S. Bank
National Association, as trustee (the “Trustee”), as supplemented by the Supplemental Indenture,
dated as of March 31, 2008, by and between the Company and the Trustee, pursuant to which the
Securities are to be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Initial Placement: The sale by the Selling Securityholders of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Interest Payment Date: As defined in the Indenture and the Securities.
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Initial Securities: As defined in the preamble hereto.
Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities: Shall mean collectively, the Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Transfer Restricted Securities: The Initial Securities; provided that the Initial Securities
shall cease to be Transfer Restricted Securities on the earliest to occur of (i) the date on which
a Registration Statement with respect to such Initial Securities has become effective under the
Securities Act and such Initial Securities have been exchanged or disposed of pursuant to such
Registration Statement, (ii) the date on which such Initial Securities cease to be outstanding or
(iii) the date on which such Initial Securities are Freely Tradable.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.
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SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof have been complied with), the Company
shall use its commercially reasonable efforts to Consummate the Exchange Offer not later than 366
days following the Closing Date (or if such 366th day is not a Business Day, the next succeeding
Business Day) (the “Exchange Date”); provided, however, that the Company shall not be required to
Consummate such Exchange Offer if no Transfer Restricted Securities are outstanding on the Exchange
Date. In connection with the foregoing, if required by this Section 3(a), the Company shall (A)
file with the Commission a Registration Statement under the Securities Act relating to the Exchange
Securities and the Exchange Offer and (B) cause all necessary filings in connection with the
registration and qualification of the Exchange Securities to be made under the state securities or
blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer.
The Exchange Offer, if required pursuant to this Section 3(a), shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Transfer Restricted Securities held by
Broker-Dealers as contemplated by Section 3(c) hereof.
(b) If an Exchange Offer Registration Statement is required to be filed and declared effective
pursuant to Section 3(a) above, the Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less than 20 days after
the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the
Exchange Offer to comply in all material respects with all applicable federal and state securities
laws. No securities other than the Exchange Securities shall be included in the Exchange Offer
Registration Statement.
(c) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted Securities acquired directly
from the Company), may exchange such Transfer Restricted Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Securities received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan
of Distribution” section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto,
but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of
Transfer Restricted Securities held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
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Subject to Section 6(d) hereof, the Company shall use its commercially reasonable efforts to
keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is
available for resales of Transfer Restricted Securities acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period ending on the earlier of
(i) 180 days from the date on which the Exchange Offer Registration Statement is declared effective
and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
Notwithstanding anything in this Section 3 to the contrary, the requirements to file the
Exchange Offer Registration Statement and the requirements to Consummate the Exchange Offer shall
terminate at such time as no Transfer Restricted Securities remain outstanding.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer solely because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a)
hereof have been complied with), (ii) for any reason the Exchange Offer is not Consummated by the
Exchange Date and there are Transfer Restricted Securities outstanding at such time, or (iii) prior
to the Exchange Date, with respect to any Holder of Transfer Restricted Securities (including any
Initial Purchaser), such Holder notifies the Company that (i) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, (ii) such Holder may
not resell the Exchange Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or (iii) such Holder is
a Broker-Dealer and holds Initial Securities acquired directly from the Company or one of its
affiliates, the Company shall:
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to the 30th day after the
Exchange Date (the “Shelf Filing Deadline”), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b) hereof; and
(y) use their commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 60th day after the
Shelf Filing Deadline (or if such 60th day is not a Business Day, the next succeeding
Business Day).
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Subject to the provisions of Section 6(d) hereof, the Company shall use its commercially
reasonable efforts to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof to the extent necessary
to ensure that it is available for resales of Transfer Restricted Securities by the Holders of such
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, from the date on which the Shelf
Registration Statement is declared effective by the Commission until the expiration of the one-year
period referred to in Rule 144 applicable to securities held by non-affiliates under the Securities
Act (or shorter period that will terminate when all the Transfer Restricted Securities covered by
such Shelf Registration Statement cease to be outstanding). Notwithstanding anything to the
contrary, the requirements to file a Shelf Registration Statement and to have such Shelf
Registration Statement become effective and remain effective shall terminate at such time as all
Transfer Restricted Securities cease to be outstanding.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. Additional Interest. If any of the Transfer Restricted Securities remain
outstanding on the Exchange Date and either (i) the Exchange Offer has not been Consummated by the
Exchange Date; (ii) any Shelf Registration Statement, if required hereby, has not been declared
effective by the Commission during the time specified in Section 4(a)(y) or (iii) except as
contemplated by Section 6(d) hereof, any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is required to be effective
under this Agreement (each such event referred to in clauses (i) through (iii), a “Registration
Default”), the Company hereby agrees that the interest rate borne by the Transfer Restricted
Securities shall be increased by 0.25% per annum during the 90-day period immediately following the
occurrence of any Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such increase exceed 1.00% per annum. At the
earlier of (i) the cure of all Registration Defaults relating to the particular Transfer Restricted
Securities or (ii) the particular Transfer Restricted Securities cease to be outstanding, the
interest rate borne by the relevant Transfer Restricted Securities will be reduced to the original
interest rate borne by such Transfer Restricted Securities; provided, however, that, if after any
such reduction in interest rate, a different Registration Default occurs, the interest rate borne
by the relevant Transfer Restricted Securities shall again be increased pursuant to the foregoing
provisions.
All obligations of the Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to be a Transfer
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Restricted Security shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
Notwithstanding anything contained herein or in the Indenture to the contrary, the payment of
“additional interest” as set forth in this Section 5 shall be the only remedy available to Holders
for any Registration Default
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, if required
pursuant to Section 3(a) hereof, the Company shall comply with all of the provisions of Section
6(c) hereof, shall use its commercially reasonable efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the intended method or methods
of distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, the Company hereby agrees to seek
a no-action letter or other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Transfer Restricted Securities. The Company hereby
agrees to pursue the issuance of such a decision to the Commission staff level but shall not
be required to take commercially unreasonable action to effect a change of Commission
policy. The Company hereby agrees, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis prepared by counsel to
the Company setting forth the legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C) diligently pursue a favorable
resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Securities
to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its
ordinary course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company’s preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secon-
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dary resale transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such Holder in exchange for Transfer Restricted Securities acquired
by such Holder directly from the Company.
(b) Shelf Registration Statement. If required pursuant to Section 4, in connection with the
Shelf Registration Statement, the Company shall comply with all the provisions of Section 6(c)
hereof and shall use its commercially reasonable efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto, the Company will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods of distribution
thereof.
(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Transfer Restricted Securities by Broker-Dealers), the Company shall:
(i) subject to the provisions of Section 6(d) hereof, use its commercially reasonable
efforts to keep such Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 hereof, as applicable; upon
the occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its commercially reasonable
efforts to cause such amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) subject to the provisions of Section 6(d) hereof, prepare and file with the
Commission such amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities covered by such Registration
Statement cease to be outstanding or have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act, and to comply fully with the applicable provisions of Rules
424 and 430A under the Securities Act in a timely manner; and comply in all material
respects with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
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in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested
by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or blue sky laws, the Company shall
use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at
the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each selling Holder
named in any Registration Statement, and each of the underwriter(s), if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus included therein
or any amendments or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus (excluding
documents incorporated by reference) to which Holders of a majority in aggregate principal
amount of Transfer Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within five Business Days after
the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial Purchaser or underwriter, if
any, shall be deemed to be reasonable if such Registration Statement, amendment, Prospectus
or supplement, as applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
the Initial Purchasers, each selling Holder named in any Registration Statement, and to
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the underwriter(s), if any, make the Company’s representatives available for discussion
of such document and other customary due diligence matters, and include such information in
such document prior to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by each selling Holder named in
any Registration Statement, the Initial Purchasers, the managing underwriter(s), if any,
participating in any disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Person(s), all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its effectiveness and to
participate in meetings with investors to the extent reasonably requested by the managing
underwriter(s), if any;
(vii) if requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the Registration Statement
to be rated with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Transfer Restricted Securities covered thereby or
the underwriter(s), if any;
(ix) furnish to each Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection with the offering and
the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
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(xi) enter into such customary agreements (including an underwriting agreement), and
make such representations and warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to the Shelf Registration Statement, all to such extent as may be
reasonably requested by any Initial Purchaser or by any Holder of Transfer Restricted
Securities or underwriter in connection with any resale pursuant to the Shelf Registration
Statement contemplated by this Agreement; if the registration is an Underwritten
Registration, the Company shall:
(A) obtain an opinion of counsel for the Company covering such matters as such
parties reasonably request (including a customary 10b-5 statement)
(B) obtain a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily requested to be covered
in comfort letters by underwriters in connection with primary underwritten
offerings, and covering or affirming the matters set forth in the comfort letters
delivered pursuant to Section 5(a) of the Purchase Agreement, without exception;
(C) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(D) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(xi)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this Section 6(c)(xi), if any.
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted Securities under the
state securities or blue sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided, however, that
the Company shall not be required to register or qualify as a foreign corporation where it
is not then so qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not then so subject;
(xiii) shall issue, upon the request of any Holder of Transfer Restricted Securities
covered by the Exchange Offer Registration Statement, Exchange Securities having an
aggregate principal amount equal to the aggregate principal amount of Transfer Restricted
Securities surrendered to the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Securities to be registered in the name of such
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Holder or in the name of the purchaser(s) of such Securities, as the case may be; in
return, the Transfer Restricted Securities held by such Holder shall be surrendered to the
Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of “global notes” representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);
(xv) use its commercially reasonable efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(xii)
hereof;
(xvi) subject to the provisions of Section 6(d) hereof, if any fact or event
contemplated by Section 6(c)(iii)(D) hereof shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or related Prospectus
or any document incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of the Registration Statement covering such Transfer Restricted Securities
and provide the Trustee under the Indenture with printed certificates for such Transfer
Restricted Securities which are in a form eligible for deposit with the Depository Trust
Company and take all other action necessary to ensure that all such Transfer Restricted
Securities are eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with the FINRA and in
the performance of any due diligence investigation by any underwriter (including any
“qualified independent underwriter”) that is required to be retained in accordance with the
rules and regulations of the FINRA;
(xix) otherwise use its commercially reasonable efforts to comply in all material
respects with all applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 under the Securities Act (which need not be audited)
for the twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with
the first month of the Company’s first fiscal quarter commencing after the
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effective date of the Registration Statement; provided that these requirements shall be
deemed satisfied by the Company’s compliance with Section 4.03 of the Indenture;
(xx) cause the Indenture to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of Transfer Restricted
Securities to effect such changes to the Indenture as may be required for such Indenture to
be so qualified in accordance with the terms of the Trust Indenture Act; and to execute and
use its commercially reasonable efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the Registration Statement to
be listed on each securities exchange or automated quotation system on which similar
securities issued by the Company are then listed if requested by the Holders of a majority
in aggregate principal amount of Transfer Restricted Securities or the managing
underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.
(d) Suspension of a Registration Statement. Notwithstanding anything contained herein to the
contrary, each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of
any notice from the Company of (A) the suspension of the use of the Registration Statement or (B)
the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until the end of such suspension and such Holder’s receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice. Notwithstanding the foregoing, the Company shall not be obligated to pay Additional
Interest pursuant to Section 5 hereof during any suspension of the use of the Registration
Statement if such suspension has been effected in accordance with this last paragraph of Section 6;
provided, however, if any such delay or suspension contin-
-13-
ues for a period in excess of 30 days, Additional Interest shall be payable in accordance with
Section 5 from the 31st day of such delay or suspension until such Registration Default is cured.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement
will be borne by the Company, regardless of whether a Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the FINRA (and, if applicable, the fees and expenses
of any “qualified independent underwriter” and its counsel that may be required by the rules and
regulations of the FINRA)); (ii) all fees and expenses of compliance with federal securities and
state securities or blue sky laws; (iii) all expenses of printing (including printing certificates
for the Exchange Securities to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the
Company and, subject to Section 7(b) hereof, the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Exchange Securities on a securities
exchange or automated quotation system pursuant to the requirements thereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company (including the expenses of
any special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx LLP or such other counsel as may be chosen
by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and (ii) each Person, if
any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter
referred to as a “controlling person”) and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person (any Person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the
fullest extent lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or
defend-
-14-
ing any claim or action, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition to any liability
which the Company may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company in writing;
provided, however, that the failure to give such notice shall not relieve the Company of its
obligations pursuant to this Agreement. Such Indemnified Holder shall have the right to employ its
own counsel in any such action and the fees and expenses of such counsel shall be paid, as
incurred, by the Company (regardless of whether it is ultimately determined that an Indemnified
Holder is not entitled to indemnification hereunder). The Company shall not, in connection with
any one such action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Company shall be liable for any settlement of any such action or
proceeding effected with the Company’s prior written consent, which consent shall not be withheld
unreasonably, and the Company agrees to indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or
otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability arising out of such
action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors, officers of the Company who sign a
Registration Statement, and any Person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such Person, to the same extent
as the foregoing indemnity from the Company to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder furnished in writing by
such Holder expressly for use in any Registration Statement. In case any action or proceeding
-15-
shall be brought against the Company or its directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given the Company, and the Company, its
directors and officers and such controlling person shall have the rights and duties given to each
Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, from the Initial Placement (which in the case of the Company shall be
deemed to be equal to the total net proceeds to the Company from the Initial Placement), the amount
of Additional Interest which did not become payable as a result of the filing of the Registration
Statement resulting in such losses, claims, damages, liabilities, judgments actions or expenses,
and such Registration Statement, or if such allocation is not permitted by applicable law, the
relative fault of the Company, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnified Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Indemnified Holders, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject to the limitations
set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending any action or
claim.
The Company and each Holder of Transfer Restricted Securities agree that it would not be just
and equitable if contribution pursuant to this Section 8(c) were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the
Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total discount received by such Holder with respect
to the sale of the Transfer Restricted Securities pursuant to a Registration Statement exceeds the
amount of any damages which such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
-16-
shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Initial Securities held by each of the
Holders hereunder and not joint.
SECTION 9. Rule 144A. The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A under the Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Securities on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included
in such offering; provided, however, that such investment banker(s) and managing underwriter(s)
must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous.
(a) Remedies. The Company hereby agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The
Company has not previously entered into any agreement granting any registration rights with respect
to its securities to any Person which is adverse to the Holders. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the rights granted to the
holders of the Company’s securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will not take any action, or permit any
change to occur, with respect to the Initial Securities that would materially and adversely affect
the ability of the Holders to Consummate any Exchange Offer.
-17-
(d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has (i) in the case of Section 5 hereof and this Section 12(d), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company:
FairPoint Communications, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
-18-
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) 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 limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement, together with the Purchase Agreement, the Initial
Securities and the Indenture, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein with respect
to the registration rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
| FAIRPOINT COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Executive Vice President | |||
The foregoing Registration Rights Agreement is hereby confirmed and accepted by Banc of
America Securities LLC, Xxxxxx Brothers Inc. and Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Initial Purchasers named in Schedule A to the Purchase Agreement as of the date first above
written.
[Signature Pages Follow]
| Banc of America Securities LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
| Xxxxxx Brothers Inc. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | MD | |||
| Xxxxxx Xxxxxxx & Co., Incorporated |
||||
| By: | /s/ [Illegible] | |||
| Name: | [Illegible] | |||
| Title: | ||||
