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Exhibit 10.39
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of
July 24, 1998, by and between e.spire Communications, Inc. (the "Company") and
Xxxxxxx, Xxxxx & Co., Bear, Xxxxxxx & Co. Inc. and ING Baring Xxxxxx Xxxx LLC,
(collectively, the "Initial Purchasers") as the purchasers of the 10.625% Senior
Discount Notes due July 1, 2008 of the Company.
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) "Closing Date" shall mean the date on which the Notes 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 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, in the case of 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, as amended.
(e) "Exchange Offer" shall have the meaning assigned thereto
in Section 2.
(f) "Exchange Notes" shall have the meaning assigned thereto
in Section 2.
(g) The term "holder" shall mean the Initial Purchasers for so
long as they own any Registrable Securities and any person who is a holder or
beneficial
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owner of any Registrable Securities, for so long as such person owns any
Registrable Securities.
(h) "Indenture" shall mean the Indenture, dated as of July 24,
1998, between the Company and The Chase Manhattan Bank, as Trustee.
(i) "Participating Broker-Dealer" shall have the meaning
assigned thereto in Section 2(a) hereof.
(j) The term "Person" shall mean a corporation, limited
liability company, association, partnership, organization, business, individual,
trust, government or political subdivision thereof or governmental agency.
(k) "Purchase Agreement" shall mean the Purchase Agreement,
dated July 24, 1998, between the Company and the Initial Purchasers relating to
the initial issuance and sale of the Notes.
(l) "Registrable Securities" shall mean the Notes; provided,
however, that such Notes shall cease to be Registrable Securities upon the first
to occur of any of the following events: (i) in the circumstances contemplated
by Section 2(a), such Notes have been exchanged for Exchange Notes in an
Exchange Offer as contemplated in Section 2(a) by a person other than a
broker-dealer, (ii) in the case of a broker-dealer, following the exchange of
such Notes for Exchange Notes by such broker-dealer, the date on which such
Exchange Notes have been sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus for
use in connection with resales by broker-dealers referred to in Section 2(a);
(iii) in the circumstances contemplated by Section 2(b), a registration
statement registering such Notes under the Securities Act has been declared or
becomes effective and such Notes have been sold or otherwise transferred by the
holder thereof pursuant to such effective registration statement; (iv) such
Notes are sold pursuant to Rule 144 under circumstances in which any legend
borne by such Notes relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture or such Notes are eligible to be sold pursuant to paragraph (k) of
Rule 144; or (v) such Notes shall cease to be outstanding.
(m) "Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
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(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 Notes 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 Notes.
(o) "Rule 144", "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act.
(p) "Notes" shall mean, collectively, the $375.0 million
aggregate principal amount of maturity of 10.625% Senior Discount Notes due July
1, 2008 of the Company to be issued and sold to the Initial Purchasers and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(q) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(r) "Shelf Registration" shall have the meaning assigned
thereto in Section 2 hereof.
(s) "Trust Indenture Act" shall mean the Trust Indenture Act
of 1939, as amended.
(t) "Trustee" shall mean The Chase Manhattan Bank, as trustee
under the Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company
agrees, to the extent not prohibited by applicable law, to use its reasonable
best efforts to file under the Securities Act, as soon as practicable, but no
later than 75 days after the
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Closing Date, a registration statement relating to an offer to exchange (the
"Exchange Offer") any and all of the Notes for a like aggregate principal amount
of debt securities of the Company which are substantially identical to the Notes
(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 and
will not contain provisions for the additional interest contemplated by Section
2(c) hereof or provisions restricting transfer (such new debt securities
hereinafter called "Exchange Notes"). The Company agrees to use its reasonable
best efforts to cause such registration statement to become effective under the
Securities Act as soon as practicable, but no later than 120 days after the
Closing Date. The Exchange Offer will be registered under the Securities 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 use its
reasonable best efforts to commence and complete the Exchange Offer promptly
after such registration statement has become effective, hold the Exchange Offer
open for at least 20 business days and exchange the Exchange Notes 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 Notes 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 without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America, it being understood that broker-dealers receiving Exchange Notes will
be subject to certain prospectus delivery requirements with respect to resale of
the Exchange Notes. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Company having exchanged the Exchange Notes
for all outstanding Registrable Securities pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange
Notes for all Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a date
that is at least 20 business days following the commencement of the Exchange
Offer. The Company agrees (i) to include in the registration statement a
prospectus for use in any resales by any holder of Notes that is a broker-dealer
and (ii) to keep such registration statement effective for a period ending on
the earlier of the 120th 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 such holders shall have the benefit of
the rights of indemnification and contribution set forth in Section 6 hereof.
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The Company shall include within the prospectus contained in the
registration statement used in connection with the Exchange Offer a section
entitled "Plan of Distribution," which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with respect to
the potential "underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Noted
received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), which have been publicly disseminated by the staff of the
Commission. Such "Plan of Distribution" section shall also expressly permit, to
the extent permitted by applicable policies and regulations of the Commission,
the use of the prospectus used in connection with the Exchange Offer by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of
the Commission, all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes in compliance with the Securities Act.
Each holder that participates in the Exchange Offer will be required,
as a condition to its participation in the Exchange Offer, to represent to the
Company in writing (which may be contained in the applicable letter of
transmittal) (i) that any Exchange Notes to be received by it will be acquired
in the ordinary course of its business, (ii) that at the time of the
commencement of the Exchange Offer such holder will have no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes in violation of the
provisions of the Securities Act, (iii) that such holder is not an affiliate of
the Company within the meaning of the Securities Act and (iv) that such holder
is not acting on behalf of a Person who could not make the foregoing
representations. In addition, each Participating Broker-Dealer that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities will be required to
represent that the Notes being tendered by such broker-dealer were acquired in
ordinary trading or market-making activities. A broker-dealer that is not able
to make the foregoing representation will not be permitted to participate in the
Exchange Offer.
(b) If (i) on or prior to the consummation of the Exchange
Offer existing Commission interpretations are changed such that the Exchange
Notes 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
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such holder without restriction under the Securities Act or (ii) any Holder of
Restricted Securities notifies the Company prior to the 20th day following
consummation of the Exchange Offer that (A) it is prohibited by law or
Commission policy from participating in the Exchange Offer or (B) that it may
not resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the resale prospectus contained in the
registration statement for the Exchange Offer referred to in Section 2(a) is not
appropriate or available for such resales or (C) that it is a broker-dealer and
owns Notes acquired directly from the Company or an affiliate of the Company, in
lieu of or, in the case of clause (iii), in addition to conducting the Exchange
Offer contemplated by Section 2(a) the Company shall file under the Securities
Act as soon as practicable 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 file
the registration statement relating to the Shelf Registration not later than 45
days after such filing obligation arises and to cause the Shelf Registration to
become or be declared effective no later than 90 days after such obligation
arises and to use its reasonable best efforts to keep such Shelf Registration
continuously effective for a period ending on the earlier of the second
anniversary of the Closing Date or such time as there are no longer any
Registrable Securities outstanding. The Company shall be deemed not to have used
its reasonable best efforts to keep the Shelf Registration effective during the
requisite period if it voluntarily takes any action that would result in holders
covered thereby not being able to offer and sell such Notes during that period,
unless (i) such action is required by applicable law or (ii) such action is
taken by the Company in good faith and for valid business reasons involving a
material undisclosed event, including, without limitation, the acquisition or
divestiture of assets or other pending corporate developments so long as the
Company promptly complies with the requirements of Section 3(c)(vi) and 3(e)
hereof, if applicable; provided, that in the case of clause (ii), such period
shall not exceed 60 days in any 12-month period (a "Suspension Period")
(whereafter Special Interest (as defined in paragraph (c)) shall accrue and be
payable). A Suspension Period shall commence on and include the date that the
Company gives notice that the Shelf Registration Statement is no longer
effective or the prospectus included therein is no longer usable for offers and
sales of Securities and shall end on the earlier to occur of (A) the date on
which each seller of Securities covered by the Shelf Registration Statement
either receives the copies of the supplemented or amended prospectus
contemplated by Section 3(e) hereof or is advised in writing by the Company that
the use of the prospectus may be resumed and (B) the expiration of 60 days in
any 12-
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month period during which one or more Suspension Periods has been in effect;
provided, however, that upon expiration of the 60-day period contemplated in
clause (B), sales under the Shelf Registration Statement shall not be permitted
unless and until the Company either delivers the copies of the supplemented or
amended prospectus contemplated by Section 3(e) hereof or advises the sellers in
writing that the use of the prospectus may be resumed. 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 (a) the
registration statement relating to the Exchange Offer on or before the 75th day
after the Closing Date or (b) the Shelf Registration on or before the 45th day
after the date on which the filing obligation for the Shelf Registration has
arisen or (ii) either such registration statement has not become effective or
been declared effective by the Commission on or before the 120th day after the
Closing Date, in the case of the Exchange Offer, or the 90th day after the date
on which the filing obligation for the Shelf Registration has arisen, in the
case of the Shelf Registration, or (iii) the Exchange Offer has not been
completed within 30 business 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 or usable (other
than in connection with a permissible Suspension Period) for transfers or
Registrable Securities during the periods referred to in Sections 2(a) and 2(b)
without being succeeded immediately by an additional registration statement
filed and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default"), then the Company shall pay cash interest on the
Notes ("Special Interest") to each holder thereof in an amount equal to $.05 per
week per $1,000 principal amount of Notes held by such holder, which amount
shall increase after the first 90- day period following the occurrence of the
first Registration Default and at the beginning of each subsequent 90-day period
during such Registration Default by an additional $.05 per week per $1,000
principal amount of Notes with respect to each subsequent week during which any
Registration Default exists, up to a maximum amount of $.50 per week per $1,000
principal amount of Notes, for the period from and including the date of
occurrence of the first Registration Default until such time as no Registration
Default is in effect (after which such Special Interest shall cease to
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be payable). In the event that any Special Interest becomes payable, the Company
shall promptly notify the Trustee of such event, including any subsequent
increase in the amount of Special Interest, and the beginning and ending dates
therefor. All accrued Special Interest will be paid by the Company on each
January 1 and July 1 to the Holder of Notes by wire transfer of immediately
available funds or by federal funds check.
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.
(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, if applicable, the Company shall use its reasonable
best efforts to effect or cause the Shelf 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, and, in the cases of clauses (ii) through (vii), (ix)
through (xi) and (xv) through (xvi) below, in connection with any sale by a
Holder that is a broker-dealer and must deliver the prospectus contained in the
registration statement relating to the Exchange Offer, the Company shall:
(i) as soon as reasonably practicable, prepare and
file with the Commission a registration statement with respect to the
Shelf 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 by the holders of the Registrable Securities, and use its
reasonable best efforts to cause such registration statement to become
effective as soon as reasonably practicable thereafter;
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(ii) as soon as reasonably practicable and subject to
the Company's right to effect a Suspension Period in accordance with
Section 2(b) hereof, 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) hereof 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, and 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;
(iii) as soon as reasonably practicable, comply with
the provisions of the Securities Act with respect to 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, (B) the
underwriters (which term, for purposes of this Agreement, shall include
a person deemed to be an under writer within the meaning of Section
2(11) of the Securities Act) if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) counsel for such underwriters or
agent, and (E) not more than one counsel for all the holders of such
Registrable Securities the 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;
(v) for a reasonable period prior to the filing of
such registration statement, and throughout the period specified in
the second sentence of Section 2(b), make available at reasonable times
at the Company's principal place of business or such other reasonable
place determined by the Company for inspection by the parties referred
to in Section 3(c)(iv) who shall certify to the Company in writing that
they have a current intention to sell the Registrable Securities
pursuant to the Shelf 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 reasonable judgment of the respective counsel referred to in
such Section, to conduct a reasonable investigation within the meaning
of Section
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be required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the Company
in writing 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), or (B) such
person shall be required, or shall deem it advisable, 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 the requirements of such order, and only after such person
shall have given the Company prompt prior written notice thereof), 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, 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
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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;
(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 by any managing underwriter or
underwriters, any placement or sales agent or any holder 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 in
writing to the Company 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 such 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 supple ment 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 placement or sales agent, if
any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(c)(iv), and, upon a written request,
each holder of Registrable Securities 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
prospec-
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tus 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 is required to remain
effective under Section 2(b) above and for so long as may be necessary
to enable any such holder, agent or underwriter to complete its
distribution of Notes pursuant to such registration statement and (C)
take any and all other actions as may be reasonably necessary to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of such 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 or taxation in any such jurisdiction or (3) make any changes to
its articles of incorporation or by-laws or any agreement between it
and its stockholders;
(xi) use its reasonable best efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state, provincial or local, which may be required to effect
the Shelf Registration or the offering or sale in connection therewith
or to enable the selling holder or
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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 not bear
any restrictive legends;
(xiii) enter into one or more reasonable forms of
underwriting agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including (without limitation) customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate principal amount of
Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities;
(xiv) 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 in form, substance and scope as are customarily reasonably
made in connection with an offering of debt securities pursuant to any
appropriate agreement and/or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain an opinion or
opinions of counsel to the Company in customary form and covering such
other matters of the type customarily covered by such an opinion, as
the managing underwriters, if any, and as any holders of Registrable
Securities may reasonably request, 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); (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 and
the placement or sales agent, if any, therefor and the underwriters, if
any, thereof, dated (i) the effective date of such registra-
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tion 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 state ment 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 documents and certificates, including officers'
certificates, as may be reasonably requested by any holders of
Registrable Securities and 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 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 customary for such transactions;
(xv) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this 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;
(xvi) 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 "assist in the distribution" (within the meaning of the Rules of
Conduct (the "Rules of Conduct") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a holder of such
Registrable Securities or as an under writer, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, cooperate
with such broker-dealer in connection with any filings required to be
made by the NASD; and
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(xvii) comply with all applicable rules and
regulations of the Commission, and make generally available to its
security holders not later than eighteen months after the effective
date of such registration statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) The Company shall also prior to the effective date of the
first registration statement relating to the Registrable Securities, (i) provide
the Trustee with certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
Registrable Securities and Exchange Notes.
(e) In the event that the Company would be required, in
connection with a Suspension Period or 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 Initial 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.
(f) The Company may require each holder of Registrable Securi-
ties as to which any registration is being effected to furnish to the Company
such information regarding such holder and such holders 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. No holder may include any
of its Registrable Securities in any Shelf Registration pursuant to this
Agreement or be entitled to
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receive Special Interest unless and until such Holder furnishes to the Company,
in writing, such information as is required by applicable law for use in
connection with any Shelf Registration or related prospectus or preliminary
prospectus. 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.
4. Registration Expenses.
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 Agreement
(excluding fees and disbursements of counsel to the Initial Purchasers and fees
and disbursements of underwriters' counsel in connection with a Shelf
Registration, in each case other than reasonable fees and disbursements relating
to Blue Sky qualifications or as otherwise set forth herein or any other
agreement in writing), including, without limitation, (a) all Commission and any
NASD registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Notes or Exchange Notes 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 or underwriters 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, the certificates representing the
Notes and Exchange Notes and all other documents relating hereto, (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,
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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), and (h) reasonable fees, disbursements and expenses
of one counsel for the holders of Registrable 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 (which
includes a description of the Registration Expenses for which reimbursement is
sought) therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency 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.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Securities
that:
(a) The compliance by the Company with all of the provisions
of this 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 articles of incorporation or 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
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such court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this 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.
(b) This 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 Initial Purchasers contained herein, and as an inducement
to the Initial Purchasers to purchase the Notes, the Company shall, and it
hereby agrees to, 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 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 the Company shall, and hereby it agrees to, 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 and documented; 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 such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto (i) in reliance upon and
in conformity with written information furnished to the Company by holders of
Registrable Securities expressly for use therein.
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(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 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 underwriter
named in any such underwriting agreement, severally and not jointly, to
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 or underwriter expressly for use therein, 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 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 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
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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.
(d) Contribution. Each party hereto agrees that, 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 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 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 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
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above shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this 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 receive 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 shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter 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
obligations in this Section 6(d) to contribute shall be several in proportion to
the principal amount of Registrable Securities registered or underwritten, 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 underwriters contemplated by
this Section 6 shall be in addition to any liability which the respective holder
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
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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 (1) 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.
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, it 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) 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, but only to the extent required from time to time to enable such holder
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 or any similar rule
or regulation hereafter adopted by the Commission. Upon the written 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
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
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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 Agreement
in accordance with the terms and conditions of this 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 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxxx,
Xxxxxxxx 00000, Attention: Chief Financial Officer 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.
(d) Parties in Interest. All the terms and provisions of this
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
acquire 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 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 Agreement.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
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.
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(f) LAW GOVERNING. THIS 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 Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of Notes) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance
of any term of this 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 a majority 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 Agreement shall be in
effect, this Agreement and a complete list of the names and 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 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.
e.spire COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President/
Secretary
XXXXXXX, XXXXX & CO.
BEAR, XXXXXXX & CO. INC.,
ING BARING XXXXXX XXXX LLC
By: XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------
(Xxxxxxx, Sachs & Co.)
25
