XXXXXX COMMUNICATIONS CORPORATION
8-7/8% SENIOR NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
September 26, 2003
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Communications Corporation, an Oklahoma corporation (the "Company"),
proposes to issue and sell (the "Initial Placement") to Xxxxxx Brothers Inc.,
Xxxxxx Xxxxxxx Co. Incorporated and Bear, Xxxxxxx & Co. Inc., as representatives
of the Initial Purchasers listed on Schedule I (the "Initial Purchasers") upon
terms set forth in a purchase agreement dated as of September 12, 2003 (the
"Purchase Agreement") among the Company and the Initial Purchasers, $650,000,000
of its 8-7/8% Senior Notes due 2013 (the "Initial Notes"). As an inducement to
you to enter into the Purchase Agreement and purchase the Initial Notes and in
satisfaction of a condition to your obligations under the Purchase Agreement,
the Company agrees with you for the benefit of the holders from time to time of
the Initial Notes (including the Initial Purchasers) (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such person
whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Damages Payment Date" means, with respect to the Initial Notes, each
date on which interest is paid in accordance with the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" means the proposed offer to the Holders to issue and
deliver to such Holders, in exchange for the Notes, a like aggregate
principal amount of Exchange Notes.
"Exchange Offer Registration Period" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) two years after
effectiveness of the Exchange Offer Registration Statement, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided,
however, that in the event that all resales of Exchange Notes (including,
subject to the time periods set forth herein, any resales by Exchanging
Dealers) covered by such Exchange Offer Registration Statement have been
made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above.
"Exchange Offer Registration Statement" means a Registration Statement
of the Company on an appropriate form under the Securities Act with respect
to the Exchange Offer, all amendments and supplements to such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchange Notes" means securities issued by the Company, identical in
all material respects to the Notes to be issued under the Indenture.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture, dated as of September 26, 2003,
between the Company and The Bank of Oklahoma, National Association as
trustee, pursuant to which the Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Notes" means the 8-7/8% Senior Notes due 2013, of the same
series under the Indenture as the Exchange Notes, for so long as such
securities constitute Transfer Restricted Securities.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 6(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" means the Initial Notes and Exchange Notes.
"Offering Memorandum" has the meaning set forth in the Purchase
Agreement.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes
covered by such Registration Statement, and all amendments and supplements
to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registration Default" has the meaning set forth in Section 5(b)
hereof.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the provisions of
this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof, which covers
some or all of the Notes or Exchange Notes, as applicable, on an
appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Target Effectiveness Date" has the meaning set forth in Section 5(b)
hereof.
"Transfer Restricted Securities" means each Note until: (i) the date
on which such Note has been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Exchange Offer; (ii) following
the exchange by a broker-dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser
who receives from such broker-dealer on or prior to the date of such sale a
copy of the Prospectus contained in the Exchange Offer Registration
Statement; (iii) the date on which such Note has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement; or (iv) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Securities Act.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means United States Trust Company of New York and any
successors thereto.
"Underwriter" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which the Notes of the Company are sold to an underwriter
for reoffering to the public.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers; Private
Exchange.
(a) The Company shall prepare and file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange Offer on
or before the 90th calendar day after the Closing Date. The Company shall
use its best efforts (i) to cause the Exchange Offer Registration Statement
to be declared effective under the Securities Act on or prior to the 150th
calendar day following the Closing Date and remain effective until the
closing of the Exchange Offer and (ii) to consummate the Exchange Offer not
later than the 30th calendar day after the effective date of the Exchange
Offer Registration Statement, unless a longer time is required by the
federal securities laws.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder (x) is not an
"affiliate" of the Company within the meaning of the Securities Act, (y) is
not a broker-dealer that acquired the Notes in a transaction other than as
a part of its market-making or other trading activities and (z) if such
Holder is not a broker-dealer, acquires the Exchange Notes in the ordinary
course of such Xxxxxx's business, is not participating in the distribution
of the Exchange Notes and has no arrangements or understandings with any
person to participate in the distribution of the Exchange Notes) to resell
such Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions
under the securities laws of a substantial proportion of the several states
of the United States.
(c) In connection with the Exchange Offer, the Company shall mail to
each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and related documents, 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 Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Notes not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have Notes exchanged pursuant to
the Exchange Offer will be required to surrender such Notes, together
with the enclosed letters of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of New
York) specified in the notice prior to the close of business on the
last day of acceptance for exchange; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last day of acceptance for
exchange, by sending to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the
notice a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the aggregate principal amount of Notes
delivered for exchange and a statement that such Xxxxxx is withdrawing
his election to have such Notes exchanged; and shall keep the Exchange
Offer open for acceptance for not less than 30 days (or longer if
required by applicable law) after the date notice thereof is mailed to
the Holders; utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and comply in all respects with all applicable laws relating to
the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to
each Holder Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that, pursuant
to interpretations by the staff of the Commission of Section 5 of the
Securities Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in connection
with a sale of any Exchange Notes received by such Exchanging Dealer
pursuant to the Exchange Offer in exchange for Notes acquired for its own
account as a result of market-making activities or other trading
activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto
in the underwriting or plan of distribution section of the Prospectus
forming a part of the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant to the
Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus
included therein by Exchanging Dealers in connection with sales of
Exchange Notes received pursuant to the Exchange Offer, as
contemplated by Section 4(h) below; provided, however, that the
Company shall not be required to maintain the effectiveness of the
Exchange Offer Registration Statement for more than 30 days following
the consummation of the Exchange Offer unless the Company has been
notified in writing on or prior to the 30th day following the
consummation of the Exchange Offer by one or more Exchanging Dealers
that such Holder has received Exchange Notes as to which it will be
required to deliver a prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it is not
eligible to participate in the Exchange Offer with respect to the exchange
of Notes constituting any portion of an unsold allotment, upon the
effectiveness of the Shelf Registration Statement as contemplated by
Section 3 hereof and at the request of the Initial Purchasers, the Company
shall issue and deliver to the Initial Purchasers, or to the party
purchasing Initial Notes registered under the Shelf Registration Statement
from the Initial Purchasers, in exchange for such Initial Notes, a like
principal amount of Exchange Notes. The Company shall use its best efforts
to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes as for Exchange Notes issued pursuant to the Exchange Offer.
(g) The Company shall use its best 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 (i) the Exchange Offer
does not violate applicable law or any applicable interpretation of the
staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Company to proceed with the
Exchange Offer, and no material adverse development shall have occurred in
any existing action or proceeding with respect to the Company and (iii) all
governmental approvals shall have been obtained, which approvals the
Company deems necessary for the consummation of the Exchange Offer. The
Company shall inform the Initial Purchasers, upon their request, of the
names and addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Notes in the
Exchange Offer.
(h) 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 Notes to be issued in the Exchange Offer and
(C) it is acquiring the Exchange Notes 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 Xxxxxxxx &
Sterling dated July 2, 1993, and similar no-action letters, and (2) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary 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 Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Company.
3. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Exchange
Offer as contemplated by Section 2 hereof, or (ii) the Company is not required
to file the Exchange Offer Registration Statement for any reason other than
those specified in clause (i) above, or (iii) with respect to any Holder of
Transfer Restricted Securities (A) such Holder is prohibited by applicable law
or Commission policy from participating in the Exchange Offer, or (B) such
Holder may not resell the Exchange Notes 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 (C) such Holder is an Exchanging Dealer and
holds Initial Notes acquired directly from the Company or one of its affiliates
(it being understood that, for purposes of this Section 3, (x) the requirement
that the Initial Purchasers deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Securities Act in
connection with sales of Exchange Notes acquired in exchange for such Notes
shall result in such Exchange Notes being not "freely tradeable" and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Notes acquired in the Exchange Offer in exchange for Notes
acquired as a result of market-making activities or other trading activities
shall not result in such Exchange Notes being not "freely tradeable"), the
following provisions shall apply:
(a) The Company shall, as promptly as practicable, file with the
Commission a Shelf Registration Statement relating to the offer and sale of
the Notes or the Exchange Notes, as applicable, by the Holders from time to
time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement and Rule 415 under the
Securities Act, provided that, with respect to Exchange Notes received by
the Initial Purchasers in exchange for Initial Notes constituting any
portion of an unsold allotment, the Company may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment
to the Exchange Offer Registration Statement containing the information
required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be filed on or prior to the 90th calendar day
after the Closing Date and declared effective under the Securities Act on
or prior to the 150th calendar day after the obligation to file a Shelf
Registration Statement under this Section 3 arises and to keep such Shelf
Registration Statement continuously effective in order to permit the
Prospectus contained therein to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective
by the Commission or such shorter period that will terminate when all the
Initial Notes or Exchange Notes, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
requisite period if the Company voluntarily takes any action that would
result in Holders of Notes covered thereby not being able to offer and sell
such Notes during that period, unless (i) such action is required by
applicable law, (ii) the Company complies with this Agreement or (iii) such
action is taken by the Company or any Guarantors in good faith and for
valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly thereafter complies with the requirements
of Section 4(m) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall, within 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 any document which
is to be incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel, upon
their request) and make such representatives of the Company as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, the Majority Holders or their
counsel) available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration Statement or
a Prospectus or any document which 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 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 object, except for any amendment or supplement or document
(a copy of which has been previously furnished to the Initial Purchasers
and their counsel (and, in the case of a Shelf Registration Statement, the
Majority Holders and their counsel, upon their request)) which counsel to
the Company shall advise the Company, in the form of a written opinion, is
required in order to comply with applicable law; the Initial Purchasers
agree that, if it receives timely notice and drafts under this clause (a),
it will not take actions or make objections pursuant to this clause (a)
such that the Company is unable to comply with its obligations under
Section 2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Securities Act and the
rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Initial Notes
covered thereby, and, if requested by the Initial Purchasers or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement,
the Holders of Initial Notes or Exchange Notes covered thereby, and,
in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if
requested by the Initial Purchasers or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Initial
Notes or Exchange Notes included therein for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening of any event that requires the making
of any changes in the Registration Statement or the Prospectus so
that, as of such date, the Registration Statement or the
Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made).
(d) The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered by any
Shelf Registration Statement that so requests, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto.
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request;
and the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Notes in connection
with the offering and sale of the Notes covered by the Prospectus or any
amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein and, if the Exchanging Dealer so requests in writing, all exhibits
thereto.
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies
of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may
reasonably request for delivery by such Exchanging Dealer in connection
with a sale of Exchange Notes received by it pursuant to the Exchange
Offer; and the Company consents to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer, as provided
in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by its
acquisition of such Notes or Exchange Notes to be sold by such Exchange
Dealer, as the case may be, that, upon actual receipt of any notice from
the Company of the happening of any event of the kind described in
paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this Section 4, such
Holder will forthwith discontinue disposition of such Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such
Holder or Exchange Dealer, as the case may be, until such Holder's or
Exchange Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(l) hereof, or until it is advised in
writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto.
In the event that the Company shall give any such notice, the Exchange
Offer Registration Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to
and including the date when each seller of the Exchange Notes covered by
such Registration Statement or Exchange Notes to be sold by such Exchange
Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 4(l) hereof or
(y) the advice in writing.
(j) Prior to the Exchange Offer or any other offering of Initial Notes
or Exchange Notes pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of Notes included therein
and their respective counsel in connection with the registration or
qualification of such Initial Notes or Exchange Notes for offer and sale
under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such states of the
Notes covered by such Registration Statement; provided, however, that the
Company will not be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(k) The Company shall issue, upon the request of any Holder of Initial
Notes covered by the Shelf Registration Statement, Exchange Notes, having
an aggregate principal amount equal to the aggregate principal amount of
Initial Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Exchange Notes, as the case may be; in return, the Initial Notes held by
such Holder shall be surrendered to the Company for cancellation.
(l) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Initial Notes
or Exchange Notes to be sold pursuant to any Registration Statement free of
any restrictive legends and in denominations of $1,000 or an integral
multiple thereof and registered in such names as Holders may request prior
to sales of Initial Notes or Exchange Notes pursuant to such Registration
Statement.
(m) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and file
a post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or any other required document so
that, as thereafter delivered to purchasers of the Initial Notes or
Exchange Notes included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading and, in the case of a Shelf Registration
Statement, notify the Holders to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event. Notwithstanding the
foregoing, the Company shall not be required to amend or supplement a Shelf
Registration Statement, any related Prospectus or any document incorporated
therein by reference, for a period not to exceed an aggregate of 30 days in
any calendar year, if the Company determines in its good faith judgment
that the disclosure of such event at such time would have a material
adverse effect on the business, operations, or prospects of the Company or
the disclosure otherwise related to a pending material business transaction
that has not yet been publicly disclosed.
(n) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Initial Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the Trustee with certificates for such
Initial Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(o) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings
statement meeting the requirements of Rule 158 under the Securities Act.
(p) The Company shall 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 Initial Notes or
Exchange Notes 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 best 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.
(q) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Initial Notes
as the Company may from time to time reasonably require for inclusion in
such Registration Statement.
(r) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree should be included therein, and shall
make all required filings of such Prospectus supplement or post-effective
amendment promptly upon notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(s) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements (including underwriting agreements) and take all
other appropriate actions in order to expedite or to facilitate the
registration or the disposition of any Initial Notes included therein, and
in connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(t) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and any of its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or Managing
Underwriters, if any, available for discussion of any such
Registration Statement; provided, however, that any non-public
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality
other than as a result of a disclosure of such information by any such
Holder, underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the Holders of
Notes registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably requested by
them;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in similar underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to the
underwriters, if any, and use reasonable efforts to have such letter
addressed to the selling Holders of Notes registered thereunder (to
the extent consistent with Statement on Auditing Standards No. 100 of
the American Institute of Certified Public Accountants (AICPA) ("SAS
100")), in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with similar
underwritten offerings, or if the provision of such "cold comfort"
letters is not permitted by SAS 100 or if requested by the Initial
Purchasers or their counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards
No. 75 of the AICPA, covering matters requested by the Initial
Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, and customarily delivered in similar offerings, including those
to evidence compliance with Section 4(m) and with any conditions
contained in the underwriting agreement or other agreement entered
into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 4(t) shall be performed at (A) the effectiveness of such
Shelf Registration Statement and each post-effective amendment thereto and
(B) each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(u) The Company shall, in the case of a Shelf Registration, use their
best efforts to cause all Notes to be listed on any securities exchange or
any automated quotation system on which similar securities issued by the
Company are then listed if requested by the Majority Holders, to the extent
such Notes satisfy applicable listing requirements.
5. Registration Expenses; Remedies.
(a) The Company shall bear all expenses incurred in connection with
the performance of its obligations under Sections 2, 3 and 4 hereof,
including without limitation: (i) all Commission, 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 of the Exchange Notes or Initial Notes),
(iii) all expenses of any persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) the fees and
disbursements of the Trustee and its counsel, (v) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the 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 in the case of
any Exchange Offer Registration Statement, the fees and expenses of counsel
to the Initial Purchasers acting in connection therewith and (vi) the fees
and disbursements of the independent public accountants of the Company
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, 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 Notes by a Holder.
(b) In the event that the Company:
(i) fails to file the Exchange Offer Registration Statement or
Shelf Registration Statement, as the case may be, on or before the
date specified for either such filing;
(ii) either such registration statement is not declared effective
by the Commission on or prior to the date specified for such
effectiveness (the "Effectiveness Target Date");
(iii) the Company fails to consummate the Exchange Offer within
30 days of the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to
be effective or usable in connection with the resales of Transfer
Restricted Securities during the periods specified in this
Registration Rights Agreement (each such event referred to in clauses
(i) through (iv) above, a "Registration Default"),
then the Company will pay additional interest ("Additional Interest") to
each holder of Initial Notes or Exchange Notes, with respect to the first
90-day period immediately following the occurrence of the first
Registration Default in an amount equal to $0.05 per week per $1,000
principal amount of Initial Notes or Exchange Notes held by that holder.
The amount of the Additional Interest will increase by an additional $0.05
per week per $1,000 principal amount of Initial Notes or Exchange Notes
with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Additional Interest for
all Registration Defaults of $0.50 per week per $1,000 principal amount of
Initial Notes or Exchange Notes.
(c) The Company shall pay all accrued Additional Interest on each
Damages Payment Date to the Global Note Holder by wire transfer of
immediately available funds and to holders of Certificate Notes by wire
transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified.
(d) Following the cure of all Registration Defaults, the accrual of
Additional Interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company
to comply with its obligations under Sections 2 and 3 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 Company's obligations under
Sections 2 and 3 hereof.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company agrees
to indemnify and hold harmless each Holder of Notes covered thereby
(including the Initial Purchasers and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging
Dealer) the directors, officers, employees and agents of such Holder and
each person who controls such Holder within the meaning of either the
Securities Act or the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in such Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage or
liability (or action in respect thereof); provided, however, that the
Company will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such indemnified party
specifically for inclusion therein; provided further, however, that the
Company will not be liable in any case with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
Prospectus or Prospectus, or in any amendment thereof or supplement thereto
to the extent that any such loss, claim, damage or liability (or action in
respect thereof) resulted from the fact that any indemnified party sold
Notes or Exchange Notes to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
as then amended or supplemented, if the Company had previously complied
with the provisions of Section 4(c)(2) and 4(f) or 4(h) hereof and if the
untrue statement contained in or omission from such preliminary Prospectus
or Prospectus was corrected in the Prospectus as then amended or
supplemented. This indemnity agreement will be in addition to any liability
that the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Notes registered under
a Shelf Registration Statement, their employees, officers, directors and
agents and each person who controls such underwriters on the same basis as
that of the indemnification of the Initial Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(s) hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including the Initial Purchasers and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging
Dealer) severally agrees to indemnify and hold harmless (i) the Company,
(ii) each of the directors of the Company, (iii) each of the officers of
the Company who signs such Registration Statement and (iv) each Person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company
to each such Holder, but only with respect to written information furnished
to the Company by or on behalf of such Holder specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability that any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve the indemnifying party from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses, and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement that
resulted in such Losses; provided, however, that in no case shall the
Initial Purchasers or any subsequent Holder of any Security or Exchange
Security be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case
of an Exchange Note, applicable to the Security that was exchangeable into
such Exchange Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the Notes
purchased by such underwriter under the Registration Statement that
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions that resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum.
Benefits received by the Initial Purchasers shall be deemed to be equal to
the total purchase discounts and commissions as set forth on the cover page
of the Final Memorandum, and benefits received by any other Holders shall
be deemed to be equal to the value of receiving Notes or Exchange Notes, as
applicable, registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement that resulted in such Losses. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation that
did not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls a Holder within the meaning of either
the Securities Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
Notes covered by a Registration Statement.
7. 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.
8. Participation In Underwritten Registrations
No Holder may participate in any Underwritten Registration hereunder unless
such Xxxxxx (a) agrees to sell such Xxxxxx'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.
9. 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 or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
10. Miscellaneous.
(a) No Inconsistent Agreement. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement that conflicts with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount of Notes (or, after the consummation
of any Exchange Offer in accordance with Section 2 hereof, of Exchange
Notes); provided that, with respect to any matter that directly or
indirectly affects the rights of the Initial Purchasers hereunder, the
Company shall obtain the written consent of the Initial Purchasers.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Initial Notes or
Exchange Notes are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis of Notes being sold
rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 7(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Trustee, with a copy in
like manner to Xxxxxx Brothers LLC.;
(ii) if to the Initial Purchasers, shall be delivered or sent by
mail, telex or facsimile transmission to:
1. Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant to
Section 8(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000;
2. Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway, New
York, New York 10036, Attention: Global Capital Markets Syndicate
Desk (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 8(d), to Director of Litigation, Law
Division, Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
3. with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxx, Esq.
(Fax: 000-000-0000);
(iii) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to:
1. the address of the Company set forth in the Offering
Memorandum, Attention: Xxxxx X. Xxxxxxxxxxx, Executive Vice
President and Chief Financial Officer/Xxxxxx X. Xxxxxx, Vice
President and Senior Corporate Counsel (Fax: 000-000-0000),
2. with a copy to McAfee & Xxxx, A Professional Corporation,
000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxx, Esq. (Fax: 000-000-0000); and
(iv) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 7(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Trustee, with a copy in
like manner to Xxxxxx Brothers Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated;
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, on the one hand, or the
Company, on the other, by notice to the other party or parties may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Initial Notes and/or Exchange Notes.
The Company hereby agrees to extend the benefits of this Agreement to any
Holder of Initial Notes and/or Exchange Notes and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same Agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) Initial Notes Held by the Company, Etc. Whenever the consent or
approval of Holders of a specified percentage of the aggregate principal
amount of Initial Notes or Exchange Notes is required hereunder, Initial
Notes or Exchange Notes, as applicable, held by the Company or its
Affiliates (other than subsequent Holders of Initial Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Initial Notes or Exchange Notes) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Please confirm that the foregoing correctly sets forth the agreements under
the Registration Rights Agreement between the Company and you.
Very truly yours,
XXXXXX COMMUNICATIONS CORPORATION
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By: XXXXXXX X. XXXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Sr. Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
For themselves and as representative of the
several Initial Purchasers named in
Schedule I hereto
SCHEDULE I
Initial Purchasers
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Rabo Securities USA, Inc.
XX Xxxxx Securities Corporation
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes for
its own account in exchange for Notes, it represents that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
