EXHIBIT 4.6
EXECUTION COPY
SENIOR SUBORDINATED NOTE REGISTRATION RIGHTS AGREEMENT
This SENIOR SUBORDINATED NOTE REGISTRATION RIGHTS AGREEMENT dated
November 8, 2002 (the "Agreement") is entered into by and among Dex Media East
LLC (formerly know as SGN LLC), a Delaware limited liability company (the
"Company"), Dex Media East Finance Co., a Delaware corporation and a wholly
owned subsidiary of the Company ("Finance Co.", and together with the Company,
the "Issuers"), LCI International, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("LCI"), and X.X. Xxxxxx Securities Inc., Banc
of America Securities LLC, Deutsche Bank Securities Inc., Xxxxxx Brothers Inc.,
Wachovia Securities, Inc., Bear Xxxxxxx & Co. Inc., Credit Lyonnais Securities
(USA) Inc., ING Financial Markets LLC, The Royal Bank of Scotland plc and Scotia
Capital (USA) Inc. (collectively, the "Initial Purchasers").
Dex Media East LLC, a Delaware limited liability company, Finance Co.
and the Initial Purchasers are parties to the Purchase Agreement dated October
30, 2002 (the "Purchase Agreement"), which the Company and LCI entered into as
of the date hereof, which provides for the sale by the Issuers to the Initial
Purchasers of $450,000,000 aggregate principal amount of the Issuers' 9 7/8%
Senior Notes due 2009 which will be guaranteed on an unsecured senior basis by
LCI, and $525,000,000 aggregate principal amount of the Issuers' 12 1/8% Senior
Subordinated Notes due 2012 (the "Securities") which will be guaranteed on an
unsecured senior subordinated basis by LCI. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Issuers and LCI have agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights with respect to the Senior Subordinated Notes set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Issuers and LCI
of Senior Subordinated Exchange Securities for Registrable Securities pursuant
to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Finance Co." shall have the meaning set forth in the preamble and
shall also include Finance Co.'s successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of the Closing Date among the Issuers, LCI and U.S. Bank National
Association, as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Issuers" shall have the meaning set forth in the preamble.
"LCI" shall have the meaning set forth in the preamble and shall also
include LCI's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Issuers or any of their affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with
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respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any
document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) when such Securities are sold
pursuant to Rule 144 under circumstances after which such Securities are freely
transferrable under the Securities Act or (iv) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers and LCI with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any Senior
Subordinated Exchange Securities or Registrable Securities, not to exceed
$10,000 in the aggregate), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, any underwriting agreements, securities sales agreements or other
similar agreements and any other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Issuers and LCI and, in the
case of a Shelf Registration Statement, the reasonable fees and disbursements of
one counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers) and
(viii) the fees and disbursements of the independent public accountants of the
Issuers and LCI, including the expenses of any special audits or "comfort"
letters required by or incident to the performance of and compliance with this
Agreement, but excluding fees and expenses of counsel to the Underwriters (other
than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers and LCI that covers any of the Senior Subordinated Exchange Securities
or Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall have the meaning set forth in the Preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Senior Subordinated Exchange Securities" shall mean senior
subordinated notes issued by the Issuers and guaranteed by LCI under the
Indenture containing terms identical to the Securities (except that the Senior
Subordinated Exchange Securities will not be subject to restrictions on transfer
or to any increase in annual interest rate for failure to comply with this
Agreement), and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers and LCI that covers all Registrable Securities (but no
other securities unless approved by the Holders whose Registrable Securities are
to be covered by such Shelf Registration Statement) on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Issuers and LCI shall use all commercially reasonable efforts to
(i) cause to be filed an Exchange Offer Registration Statement covering an offer
to the Holders to exchange all the Registrable Securities for Senior
Subordinated Exchange Securities and (ii) have such Registration Statement
remain effective until the earlier of (A) 180 days after the closing of the
Exchange Offer and (B) such time as no broker-dealer holds any Registrable
Securities. The Issuers and LCI shall commence the Exchange Offer promptly after
the Exchange Offer Registration Statement is declared effective by the SEC and
use all commercially reasonable efforts to complete the Exchange Offer not later
than 60 days after such effective date.
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The Issuers and LCI shall commence the Exchange Offer by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 Business Days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but will not retain any
rights under this Agreement;
(iv) that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address and in the manner
specified in the notice, prior to the close of business on the last
Exchange Date; and
(v) that any Holder will be entitled to withdraw its election,
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address specified in the notice,
a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
its election to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Issuers and LCI that (i) any Senior Subordinated
Exchange Securities to be received by it will be acquired in the ordinary course
of its business, (ii) at the time of the commencement of the Exchange Offer it
has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Senior
Subordinated Exchange Securities in violation of the provisions of the
Securities Act, (iii) it is not an "affiliate" (within the meaning of Rule 405
under Securities Act) of either of the Issuers or LCI and (iv) if such Holder is
a broker-dealer that will receive Senior Subordinated Exchange Securities for
its own account in exchange for Registrable Securities that were acquired as a
result of market-making or other trading activities, then such Holder will
deliver a Prospectus in connection with any resale of such Senior Subordinated
Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers and
LCI shall:
(i) accept for exchange Registrable Securities or portions
thereof validly tendered and not properly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancelation all Registrable Securities or portions thereof so accepted
for exchange by the Issuers and issue, and cause the Trustee to
promptly authenticate and deliver to
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each Holder, Senior Subordinated Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Issuers and LCI shall use all commercially reasonable efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC.
(b) In the event that (i) the Issuers and LCI determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be completed as soon as practicable after the last Exchange Date
because it would violate any applicable law or applicable interpretations of the
Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed
by May 7, 2003 or (iii) the Exchange Offer has been completed and, in the
opinion of counsel for the Initial Purchasers, a Registration Statement must be
filed and a Prospectus must be delivered by the Initial Purchasers in connection
with any offering or sale of Registrable Securities originally purchased and
still held by the Initial Purchasers, the Issuers and LCI shall use all
commercially reasonable efforts to cause to be filed as soon as practicable
after such determination, date or delivery of such opinion of counsel to the
Issuers, as the case may be, a Shelf Registration Statement providing for the
sale of all the Registrable Securities by the Holders thereof and to have such
Shelf Registration Statement declared effective by the SEC. To the extent a
Shelf Registration Statement is required to be filed pursuant to clause (ii) and
the Exchange Offer is completed on a date later than May 7, 2003, upon the
completion of the Exchange Offer, the Issuers and LCI will no longer be required
to file, make effective or continue the effectiveness of the Shelf Registration
Statement, except as may be required pursuant to clause (i) or (iii).
In the event that the Issuers and LCI are required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence, the
Issuers and LCI shall use all commercially reasonable efforts to file and have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchasers after completion of the
Exchange Offer.
The Issuers and LCI agree to use all commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) under the Securities Act
with respect to the Registrable Securities or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or are no
longer outstanding (the "Shelf Effectiveness Period"). The Issuers and LCI
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Issuers and LCI for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably and timely
requested by a Holder of Registrable Securities with respect to information
relating to such Holder, and to use all commercially reasonable efforts to cause
any such amendment to become
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effective and such Shelf Registration Statement and Prospectus to become usable
as soon as thereafter practicable. The Issuers and LCI agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Issuers and LCI shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared effective on
or prior to May 7, 2003, the interest rate on the Registrable Securities will be
increased by 1.00% per annum until the Exchange Offer is completed or the Shelf
Registration Statement, if required hereby, is declared effective by the SEC or
the Securities become freely tradable under the Securities Act.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 45 consecutive days
or more than 60 days (whether or not consecutive) in any 12-month period, then
the interest rate on the Registrable Securities will be increased by 1.00% per
annum commencing on the 46th or 61st day in such 12-month period and ending on
such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable; provided, however, that in no
event will such additional interest, together with the additional interest
payable pursuant to the immediately preceding paragraph, if any, exceed 1.00%.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Issuers and LCI acknowledge that any failure by the Issuers
or LCI to comply with their obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Issuers' and LCI's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Issuers and LCI shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Issuers and LCI, (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
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statements required by the SEC to be filed therewith; and use all commercially
reasonable efforts to cause such Registration Statement to become effective and
remain effective for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Senior Subordinated Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus as
reasonably requested, including each preliminary Prospectus, and any amendment
or supplement thereto, in order to facilitate the sale or other disposition of
the Registrable Securities thereunder; and the Issuers and LCI consent to the
use of such Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of Registrable Securities and
any such Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(d) use all commercially reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither of the Issuers nor LCI
shall be required to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if,
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between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of either of the Issuers or LCI contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if either of the Issuers or LCI receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by either of the Issuers or LCI that a
post-effective amendment to a Registration Statement would be appropriate;
(f) use all commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, if requested, furnish to each
Holder of Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use all commercially reasonable
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Issuers
and LCI shall notify the Holders of Registrable Securities to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Issuers and
LCI have amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement,
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provide copies of such document to the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, to the Holders of
Registrable Securities and their counsel) and make such of the representatives
of the Issuers and LCI as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities or their counsel) available for discussion
of such document; and the Issuers and LCI shall not, at any time after initial
filing of a Registration Statement, file any Prospectus, any amendment of or
supplement to a Registration Statement or a Prospectus, or any document that is
to be incorporated by reference into a Registration Statement or a Prospectus,
of which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities and their counsel)
shall not have previously been advised and furnished a copy or to which the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Senior Subordinated Exchange
Securities or Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Senior Subordinated Exchange
Securities or Registrable Securities, as the case may be; cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and execute, and use all commercially reasonable
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities reasonably
acceptable to the Issuers (an "Inspector"), any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all pertinent financial and other records, documents and properties of
the Issuers and LCI, and cause the respective officers, directors and employees
of the Issuers and LCI to supply all information reasonably requested by any
such Inspector, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that if any such information is identified by
either of the Issuers or LCI as being confidential or proprietary, each Person
receiving such information shall take such actions as are reasonably necessary
to protect the confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of the rights
and interests of any Inspector, Holder or Underwriter;
(n) in the case of a Shelf Registration, use all commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued or guaranteed by either of the Issuers or LCI are then listed
if requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
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(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, promptly incorporate in a Prospectus
supplement or post- effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Issuers have received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those reasonably requested by the Holders of a majority in principal amount of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Issuers and LCI (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered
in opinions requested in underwritten offerings, (iii) obtain "comfort" letters
from the independent certified public accountants of the Issuers and LCI (and,
if necessary, any other certified public accountant of any subsidiary of either
of the Issuers or LCI, or of any business acquired by either of the Issuers or
LCI for which financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of each of the Issuers
and LCI made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers may require
each Holder of Registrable Securities to furnish to the Issuers such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Issuers may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Issuers
and LCI of the happening of any event of the kind described in Section 3(e)(iii)
or 3(e)(v) hereof or a notice pursuant to the last sentence of this paragraph,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof
and, if so directed by the Issuers and LCI, such Holder will deliver to the
Issuers and LCI all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering
such Registrable Securities that is current at the time of receipt of such
notice. In addition, the Issuers may give notice of the suspension of the
offering and sale under
11
the Shelf Registration Statement for a period or periods upon the occurrence or
existence of any pending corporate development that, in the good faith judgment
of the Board of Directors of the Company, makes such suspension necessary.
If the Issuers and LCI shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Issuers and LCI shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The
Issuers and LCI may give any such notice only twice during any 365-day period
and any such suspensions shall not exceed 45 days for each suspension and there
shall not be more than two suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Senior
Subordinated Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Senior Subordinated Exchange Securities.
The Issuers and LCI understand that it is the Staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Senior Subordinated Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Senior Subordinated Exchange Securities owned by them, such Prospectus
may be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Senior Subordinated Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Issuers and LCI agree to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Senior Subordinated Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Issuers and LCI further agree that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
12
(c) The Initial Purchasers shall have no liability to the Company,
Finance Co., LCI or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Issuers and LCI, jointly
and severally, agree to indemnify and hold harmless each Initial Purchaser and
each Holder, their respective affiliates, directors and officers and each
Person, if any, who controls any Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any Prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser or any Holder furnished to the Issuers in writing through X.X. Xxxxxx
Securities Inc. or any selling Holder expressly for use therein; provided, that
with respect to any such untrue statement in or omission from any preliminary
prospectus, the indemnity agreement contained in this Section 5(a) shall not
inure to the benefit of any Initial Purchaser or any Holder from whom the person
asserting any such loss, claim, damage or liability received Securities or
Senior Subordinated Exchange Securities to the extent that any such loss, claim,
damage or liability of or with respect to such Initial Purchaser or Holder
results from the fact that both (i) a copy of the final prospectus was not sent
or given to such person at or prior to the written confirmation of the sale of
such Securities or Senior Subordinated Exchange Securities to such person and
(ii) the untrue statement in or omission from the related preliminary prospectus
was corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Issuers or
LCI with the provisions of Section 3. In connection with any Underwritten
Offering permitted by Section 3, the Issuers and LCI, jointly and severally,
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, LCI, the Initial Purchasers and the other selling
Holders, their respective affiliates, the directors of the Issuers and LCI, each
officer of the Issuers and LCI who signed the Registration Statement and each
Person, if any, who controls the Issuers, LCI, any Initial Purchaser and any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement
13
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the Issuers
in writing by such Holder expressly for use in any Registration Statement and
any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm (x) for any
Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser shall be designated in writing by X.X. Xxxxxx
Securities Inc., (y) for any Holder, its affiliates, directors and officers and
any control Persons of such Holder shall be designated in writing by the
Majority Holders and (z) in all other cases shall be designated in writing by
the Issuers. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
14
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and LCI from the offering of the Securities and
the Senior Subordinated Exchange Securities, on the one hand, and by the Holders
from receiving Securities or Senior Subordinated Exchange Securities registered
under the Securities Act, on the other hand, or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Issuers and LCI on the one hand and the
Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Issuers and LCI on
the one hand and the Holders 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 Issuers and LCI or by the Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Issuers, LCI and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5 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 that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Senior Subordinated Exchange Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
15
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder, their respective affiliates or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the
Issuers or LCI, their respective affiliates or the officers or directors of or
any Person controlling the Issuers or LCI, (iii) acceptance of any of the Senior
Subordinated Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. Each of the Issuers and LCI represent,
warrant and agree that (i) 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 any other outstanding securities issued or guaranteed by either of
the Issuers or LCI under any other agreement and (ii) neither the Issuers nor
LCI has entered into, or on or after the date of this Agreement will enter into,
any agreement that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement 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, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuers and LCI have obtained the written consent of Holders of
at least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 5 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing by
such Holder. Any amendments, modifications, supplements, waivers or consents
pursuant to this Section 6(b) shall be by a writing executed by each of the
parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuers by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Issuers and LCI, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c); and (iii) to such other
persons at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c). All such notices and communications shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered
16
to an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Issuers or LCI with respect to any failure by a Holder to
comply with, or any breach by any Holder of, any of the obligations of such
Holder under this Agreement.
(e) Purchases and Sales of Securities. The Issuers and LCI shall not,
and shall use all commercially reasonable efforts to cause their affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Issuers and LCI, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of other
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Issuers and LCI and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DEX MEDIA EAST LLC (formerly known as
SGN LLC)
by /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
DEX MEDIA EAST FINANCE CO.
by /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
LCI INTERNATIONAL, INC.
by /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
Confirmed and accepted as of the
date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
by /s/ Xxxxxx Xxxx
----------------------------------
Authorized Signatory
18
