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EXHIBIT 4.7
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of November 7,
1996 by and between Xxxxxx Fiber Properties, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx, Sachs & Co. and Salomon Brothers Inc (collectively,
the "Purchasers") of the 11 7/8% Senior Discount Notes due November 1, 2006 of
the Company.
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
(a) "Closing Date" shall mean the date on which the Securities
are initially issued.
(b) "Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(c) "Effective Time", in the case of (i) an Exchange Offer,
shall mean the date on which the Commission declares the Exchange
Offer registration statement effective or on which such registration
statement otherwise becomes effective and (ii) a Shelf Registration,
shall mean the date on which the Commission declares the Shelf
Registration effective or on which the Shelf Registration otherwise
becomes effective.
(d) "Exchange Act" shall mean the Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time
to time.
(e) "Exchange Offer" shall have the meaning assigned thereto
in Section 2(a).
(f) "Exchange Securities" shall have the meaning assigned
thereto in Section 2(a).
(g) The term "holder" shall mean each of the Purchasers for so
long as it owns any Registrable Securities, and such of its respective
successors and assigns who acquire Registrable Securities, directly or
indirectly, from such person or from any successor or assign of such
person, in each case for so long as such person owns any Registrable
Securities.
(h) "Indenture" shall mean the Indenture, dated as of
November 7, 1996, between the Company and The Bank of New York, as
Trustee.
(i) The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
(j) "Purchase Agreement" shall mean the Purchase Agreement
dated November 1, 1996 between the Company and the Purchasers.
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(k) "Registrable Securities" shall mean the Securities;
provided, however, that such Securities shall cease to be Registrable
Securities when (i) except if prior to the consummation of the
Exchange Offer existing Commission interpretations are changed such
that the Exchange Securities received by holders in the Exchange Offer
for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder (other than a Restricted Holder)
without restriction under the Securities Act in the circumstances
contemplated by Section 2(a), the Exchange Offer is conducted as
contemplated in Section 2(a); provided, however, that any such
Securities that, pursuant to the last two sentences of Section 2(a),
are included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be Registrable Securities with
respect to Sections 5, 6 and 9 until resale of such Exchange
Securities has been effected within the 90-day period referred to in
Section 2(a); (ii) in the circumstances contemplated by Section 2(b),
a registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the holder
thereof pursuant to such effective registration statement; (iii) such
Securities are sold pursuant to Rule 144 (or any successor provision)
promulgated under the Securities Act under circumstances in which any
legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed by the Company or pursuant to the Indenture or such Securities
are eligible to be sold pursuant to paragraph (k) of Rule 144; or (iv)
such Securities shall cease to be outstanding.
(l) "Registration Default" shall have the meaning assigned
thereto in Section 2(c) hereof.
(m) "Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
(n) "Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405 under the
Securities Act, (ii) a holder who acquires Exchange Securities outside
the ordinary course of such holder's business or (iii) a holder who
has arrangements or understandings with any person to participate in
the Exchange Offer for the purpose of distributing Exchange
Securities.
(o) "Securities" shall mean, collectively, the 11 7/8% Senior
Discount Notes due November 1, 2006, of the Company to be issued and
sold to the Purchasers, and securities issued in exchange therefor or
in lieu thereof pursuant to the Indenture.
(p) "Securities Act" shall mean the Securities Act of 1933, or
any successor thereto, as the same shall be amended from time to time.
(q) "Shelf Registration" shall have the meaning assigned
thereto in Section 2(b) hereof.
(r) "Special Interest" shall have the meaning assigned thereto
in Section 2(c) hereof.
(s) "Trust Indenture Act" shall mean the Trust Indenture Act
of 1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended from
time to time.
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2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its best efforts to file under the Securities Act no later than 60 days
after the Closing Date, a registration statement relating to an offer to
exchange (the "Exchange Offer") for a like aggregate principal amount of debt
securities of the Company which are substantially identical to the Securities
(and which are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act) except that they have been registered
pursuant to an effective registration statement under the Securities Act (such
new debt securities hereinafter called "Exchange Securities") for any or all of
the Registrable Securities. The Company agrees to use its reasonable best
efforts to cause such registration statement to become effective under the
Securities Act no later than 90 days after the Closing Date. The Exchange
Offer will be registered under the Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to commence and complete the Exchange Offer promptly
after such registration statement has become effective, hold the Exchange Offer
open for at least 30 days and exchange Exchange Securities for all Registrable
Securities that have been tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have
been completed only if the Exchange Securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the
Securities Act and the Exchange Act and without material restrictions under the
blue sky or securities laws of a substantial majority of the States of the
United States of America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have been
tendered and not withdrawn before the expiration of the Exchange Offer, which
shall be on a date that is at least 30 days following the commencement of the
Exchange Offer. The Company agrees (i) to include in the registration statement
a prospectus for use in connection with any resales by any holder of Exchange
Securities that is a broker-dealer and (ii) to keep such registration statement
effective for a period ending on the earlier of the 90th day after the Exchange
Offer has been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such registration statement the Company
and any such holder shall have the benefit of, and shall each provide to the
other, the rights of indemnification and contribution set forth in Section 6
hereof.
(b) If prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act, in lieu of
conducting the Exchange Offer contemplated by Section 2(a) the Company shall
file under the Securities Act a "shelf" registration statement providing for
the registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Company agrees to use its reasonable best
efforts to cause the Shelf Registration to become or be declared effective no
later than 90 days after the Closing Date and to keep such Shelf Registration
continuously effective for a period ending on the earlier of the
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third anniversary of the Closing Date or such time as there are no longer any
Registrable Securities outstanding. The Company further agrees to supplement
or make amendments to the Shelf Registration, as and when required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) the Company has not filed the registration
statement relating to the Exchange Offer (or, if applicable, the Shelf
Registration) on or before the 60th day after the Closing Date, or (ii) such
registration statement or, in lieu thereof, the Shelf Registration, has not
become effective or been declared effective by the Commission on or before the
90th day after the Closing Date, or (iii) the Exchange Offer has not been
completed within 45 days after the initial effective date of the registration
statement (if the Exchange Offer is then required to be made) or (iv) any
registration statement required by Section 2(a) or 2(b) is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted herein) without being succeeded promptly by an additional
registration statement filed and declared effective (each such event referred
to in clauses (i) through (iv), a "Registration Default"), then interest will
accrue (in addition to the original issue discount and any stated interest on
the Securities) at the rate of 0.5% per annum on the Accreted Value (as defined
in the Indenture) of the Securities (or after November 1, 2001, on the
principal amount of the Securities), determined daily (calculated on the same
basis as Accreted Value of or interest on the Securities, as the case may be,
shall be calculated) for the period from the occurrence of the Registration
Default until such time as no Registration Default is in effect (after which
time no such special interest will accrue). Such special interest (the "Special
Interest") will be payable in cash semi-annually in arrears on each May 1 and
November 1 in accordance with the Indenture. In addition, in the event that the
Exchange Offer has not been completed or, if applicable, the Shelf Registration
has not become effective or been declared effective by the Commission on or
before the 135th day after the Closing Date, then the per annum rate of Special
Interest shall increase by an additional 0.5%, and Special Interest will be
paid at such increased rate until such time as the Company completes the
Exchange Offer or, if applicable, the Shelf Registration has become or been
declared effective.
(d) In the event that either of the Purchasers shall not have sold
all of the Securities initially purchased by it pursuant to the Purchase
Agreement within 60 days after the Closing Date and such Purchaser requests on
the business day following the expiration of such 60- day period that the
Company register a resale of such unsold Securities, the Company shall file
under the Securities Act as soon as practicable after receipt of such request a
registration statement on the appropriate form covering a resale of such unsold
Securities (the "Resale Registration") and will use its reasonable best efforts
to cause such registration statement to become effective under the Securities
Act as promptly as practicable and to keep such registration statement
continuously effective pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission for a period of up to 30
days.
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3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Shelf Registration or any Resale Registration, if applicable, the Company shall
use its reasonable best efforts to effect or cause the Shelf Registration or
Resale Registration to permit the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof described in the Shelf Registration. In connection
therewith, the Company shall:
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration or Resale
Registration on any form which may be utilized by the Company and
which shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified
in writing to the Company by the holders of the Registrable
Securities;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such registration statement
for the period specified in Section 2(b) or Section 2(d) hereof, as
applicable, and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such registration statement;
(iii) as soon as reasonably possible, comply with the
provisions of the Securities Act applicable to the Company in
connection with the disposition of all of the Registrable Securities
covered by such registration statement in accordance with the intended
methods of disposition by the holders thereof, set forth in such
registration statement;
(iv) provide (A) the holders of the Registrable Securities to
be included in such registration statement and not more than one
counsel for all the holders of such Registrable Securities, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities
Act), if any, thereof, (C) the sales or placement agent, if any,
therefor, and (D) one counsel for such underwriters or agents, if any,
reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with
the Commission, and each amendment or supplement thereto;
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(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b) or Section 2(d), as applicable, make available at reasonable
times at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in Section
3(c)(iv) who shall certify to the Company that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration or Resale Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise, except by disclosure by such party in breach
of this Agreement), or (B) such person shall be required so to
disclose such information pursuant to the subpoena or order of any
court or other governmental agency or body having jurisdiction over
the matter (subject to, and only to the extent required by, the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement), or
(C) such information is required to be set forth in such registration
statement or the prospectus included therein or in an amendment to
such registration statement or an amendment or supplement to such
prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission and by the
Blue Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the Company
contemplated by Section 3(c)(xv) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F)
at any time when a prospectus is required to be delivered under the
Securities Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective amendment, or any
document incorporated by reference in any of the foregoing, contains
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
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(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested in writing by any managing underwriter or
underwriters, any placement or sales agent or counsel for the holders
of Registrable Securities, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required
by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such holder
specifies should be included therein relating to the terms of the sale
of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable
Securities being sold by any holder or agent or to any underwriters,
the name and description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities, to be sold by such holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(c)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies
of such registration statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such holder, agent or underwriter, as the case may be)
and of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as such holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such holder, offered or sold by
such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to
the use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such
holder and by any such agent and underwriter, in each case in the form
most recently provided to such party by the Company, in connection
with the offering and sale of the Registrable Securities covered by
the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration
statement under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration or Resale
Registration is required to remain effective under Section 2(b) or
Section 2(d) above, as applicable, and for so long as may be necessary
to enable any such
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holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any
and all other actions as may be reasonably necessary or advisable to
enable each such holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of Registrable
Securities; provided, however, that the Company shall not be required
for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(c)(x), (2) consent to general
service of process in any such jurisdiction, (3) subject itself to
taxation in any jurisdiction where the Company is not already subject
to taxation or (4) make any changes to the Company's certificate of
incorporation or by-laws or any agreement between the Company and its
stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration
or Resale Registration or the offering or sale in connection therewith
or to enable the selling holder or holders to offer, or to consummate
the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such
methods, and which shall not bear any restrictive legends; and, in the
case of an underwritten offering, enable such Registrable Securities
to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities,
not later than the effective date of the Shelf Registration or Resale
Registration;
(xiv) enter into one or more underwriting agreements,
engagement letters, agency agreements or similar agreements, as
appropriate, including (without limitation) provisions relating to
indemnification and contribution substantially the same as those set
forth in Section 6 hereof, and take such other actions in connection
therewith as any holders of Registrable Securities aggregating at
least 25% in aggregate principal amount of the Registrable Securities
included in such Shelf Registration or Resale Registration shall
request in order to expedite or facilitate the disposition of such
Registrable Securities; provided, that the Company shall not be
required to enter into any such agreement more than once with respect
to all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering
which the Company shall have then undertaken;
(xv) whether or not an agreement of the type referred to in
Section (3)(c)(xiv) hereof is entered into and whether or not any
portion of the offering contemplated by such registration statement is
an underwritten offering or is made through a placement or sales agent
or any other entity, (A) make such representations and warranties to
the holders of such Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof
substantially the same as those set forth in Section 1 of the Purchase
Agreement and such other representations and warranties as are
customarily made with respect to the offering
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of debt securities pursuant to a shelf registration statement on the
applicable form under the Act; (B) obtain an opinion or opinions of
counsel to the Company substantially the same as the opinions provided
for in Section 7 of the Purchase Agreement, addressed to such holder
or holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall also include, without
limitation, the absence of governmental approvals required to be
obtained in connection with the Shelf Registration or Resale
Registration, the offering and sale of the Registrable Securities,
this Exchange and Registration Rights Agreement or any agreement of
the type referred to in Section (3)(c)(xiv) hereof, except such
approvals as may be required under state securities or blue sky laws;
and the compliance as to form of such registration statement and any
documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, such opinion shall also state that such counsel has
no reason to believe that, as of the date of the opinion and of the
registration statement or most recent post-effective amendment
thereto, as the case may be, such registration statement and the
prospectus included therein, as then amended or supplemented, and the
documents incorporated by reference therein (in each case other than
the financial statements and other financial information contained
therein) contains or contained an untrue statement of a material fact
or omits or omitted to state therein a material fact necessary to make
the statements therein not misleading (in the case of such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
holders of Registrable Securities, the placement or sales agent, if
any, therefor and the underwriters, if any, thereof, dated (i) the
effective date of such registration statement and (ii) the effective
date of any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such
registration statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such
registration statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such
registration statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
other documents and certificates, including officers' certificates, as
may be reasonably requested by any holders of at least 25% in
aggregate principal amount of the Registrable Securities included in
such Shelf Registration or Resale Registration or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a)
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as
are provided in Section 6 hereof;
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(xvi) notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each
of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be; and
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "participate in the distribution" (within the meaning of the
Conduct Rules and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Rule 2720 (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as defined in
Rule 2720 (or any successor thereto)) to participate in the
preparation of the registration statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
registration statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof, and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Conduct Rules of the NASD.
(d) In the event that the Company would be required, pursuant to
Section 3(c)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such holder, to each placement or sales agent, if any, and to
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall not 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 in light of
the circumstances then existing. Each holder of Registrable Securities agrees
that upon receipt of any notice from the Company pursuant to Section
3(c)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities, pursuant to the registration statement applicable to
such Registrable Securities until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company,
such holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such holder's possession of the
prospectus covering such Registrable Securities at the time of receipt of such
notice.
(e) The Company may require each holder of Registrable Securities as
to which any registration is being effected to furnish in writing to the
Company such information regarding such holder and such holder's intended
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act, and may
exclude from
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any such registration the Registrable Securities of any such holder who fails
to furnish such reasonably requested information within 30 days after such
request. Each such holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such holder to the Company or of the occurrence of any event in either case as
a result of which any prospectus relating to such registration contains or
would contain an untrue statement of a material fact regarding such holder or
such holder's intended method of distribution of such Registrable Securities or
omits to state any material fact regarding such holder or such holder's
intended method of distribution of such Registrable Securities required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such holder or the distribution of such Registrable
Securities, 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 in light of the circumstances then existing. Each such holder
shall comply with the provisions of the Securities Act applicable to such
holder with respect to the disposition by such holder of Registrable Securities
covered by such registration statement in accordance with the intended methods
of disposition by such holder set forth in such registration statement.
(f) Until three years after the Closing Date, the Company will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them except pursuant to an
effective registration statement under the Act or any exemption therefrom.
4. Registration Expenses.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's performance of or compliance with this Exchange and
Registration Rights Agreement, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) any fees
and expenses in connection with the qualification of Registrable Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(c)(x) hereof, including reasonable fees and disbursements of counsel
for the placement or sales agent, if any, or underwriters, if any, in
connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities, (d) messenger and
delivery expenses, (e) fees and expenses of the Trustee under the Indenture and
of any escrow agent or custodian, (f) internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of
any "qualified independent underwriter" engaged pursuant to Section 3(c)(xvii)
hereof, (i) fees, disbursements and expenses of one counsel for the holders of
Registrable
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Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities being registered, and fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registered Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
advertising expenses incurred by or on behalf of such holders in connection
with any offers they may make.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section
3(c)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will
conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and any such registration statement
and any amendment thereto will not 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
any such prospectus or any amendment or supplement thereto will not
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 in light of the circumstances then
existing; and at all times subsequent to the Effective Time of any
such registration statement when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a
notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(vi)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section
3(d) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(c)(ix) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and will not 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 in the light of the circumstances then
existing; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
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Company by a holder of Registrable Securities or any placement or
sales agent therefor or underwriter thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may
be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions
of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any subsidiary of the Company is a party or by which the Company or
any subsidiary of the Company is bound or to which any of the property
or assets of the Company or any subsidiary of the Company is subject,
nor will such action result in any violation of the provisions of the
certificate of incorporation, as amended, or the by-laws of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any subsidiary of the Company or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated
by this Exchange and Registration Rights Agreement, except the
registration under the Securities Act of the Registrable Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under State securities or blue sky laws in
connection with the offering and distribution of the Registrable
Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of
the agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Company shall, and it hereby agrees
to, (i) indemnify and hold harmless each of the holders of Registrable
Securities to be included in such registration, and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent or underwriter may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any registration
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statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, agent or underwriter,
or any amendment 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 not misleading, and
(ii) reimburse such holder, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any such registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by any holders
of Registrable Securities or any placement or sales agent thereof or
underwriter thereof expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2 hereof and to
entering into any placement or underwriting agreement with respect thereto,
that the Company shall have received an undertaking reasonably satisfactory to
it from the holder of such Registrable Securities and from each placement agent
or underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the Company, and
all other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, agent or underwriter, or any
amendment 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 not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such holder, agent or underwriter expressly for use therein, and (ii) reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such holder shall be required
to undertake liability to any person under this Section 6(b) for any amounts in
excess of the dollar amount of the proceeds to be received by such holder from
the sale of such holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying party
in writing of the commencement of such action; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party other than under the indemnification provisions
of or contemplated by Section 6(a) or 6(b) hereof. In case
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any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party. No indemnifying party shall be
liable for the cost of any settlement effected by an indemnified party without
the written consent of such indemnifying party, which consent shall not be
unreasonably withheld. In no event shall any indemnifying party be liable for
the fees and expenses of more than one firm or counsel (except to the extent
that local counsel, in addition to such firm or counsel, is required for
effective representation) to represent all indemnified parties with respect to
a single action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
not only (i) the relative benefits received by the holders of the Registrable
Securities, on the one hand, and any agents or underwriters, on the other, from
any offering or sale of the Registrable Securities, but also (ii) the relative
fault of the indemnifying party and the indemnified party in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the holders of the
Registrable Securities on the one hand and any agents or underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from any offering or sale thereof (before deducting expenses) received by such
holders bear to the total discounts and commissions received by any such agents
or underwriters with respect to such offer or sale. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as one entity
for such purpose) or by any other method of allocation
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which does not take account of the equitable considerations referred to in this
Section 6(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter or agent shall be required to contribute any
amount in excess of the amount by which the total price at which the
Registrable Securities placed or underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter or agent 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. The holders' and any
underwriters' or agent's obligations in this Section 6(d) to contribute shall
be several in proportion to the principal amount of Registrable Securities
registered, underwritten or placed, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate principal amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate
in any underwritten offering hereunder unless such holder (i) agrees to sell
such holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
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(c) Consolidated Earnings Statements. In the event of an underwritten
offering, the Company agrees to make generally available to its securityholders
as soon as practicable, but in any event not later than eighteen months after
the effective date of the applicable registration statement (as defined in Rule
158(c) under the Act), a consolidated earnings statement of the Company
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158 under
the Act).
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Section
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to make Rule 144 available to such holder
for the sale of Registrable Securities without registration under the
Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities in connection with
that holder's sale pursuant to Rule 144, the Company shall deliver to such
holder a written statement as to whether it has complied with such
requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and
Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions
of this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 000 Xxxxx Xxxx Xxxxx, Xxxx & Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxx and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other address as
any party may have furnished to the others in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
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(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed
a party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Exchange
and Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any holder of Registrable Securities, any director, officer
or partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which form a
part hereof contain the entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be amended
and the observance of any term of this Exchange and Registration Rights
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least 66-2/3 percent in aggregate
principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section
9(h), whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is delivered to such
holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and
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addresses of all the holders of Registrable Securities shall be made available
for inspection and copying on any business day by any holder of Registrable
Securities at the offices of the Company at the address thereof set forth in
Section 9(c) above or at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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Agreed to and accepted as of the date referred to above.
XXXXXX FIBER PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
& Chief Financial Officer
XXXXXXX, SACHS & CO.
SALOMON BROTHERS INC
/s/ Xxxxxxx, Xxxxx & Co.
------------------------------------
(Xxxxxxx, Sachs & Co.)
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