EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
LONGVIEW FIBRE COMPANY
AND
BANC OF AMERICA SECURITIES LLC
SCOTIA CAPITAL (USA) INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
U.S. BANCORP XXXXX XXXXXXX INC.
DATED AS OF JANUARY 25, 2002
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 25, 2002, by and among Longview Fibre Company, a
Washington corporation (the "Company"), and Banc of America Securities LLC,
Scotia Capital (USA) Inc., Xxxxx Fargo Brokerage Services, LLC and U.S. Bancorp
Xxxxx Xxxxxxx Inc. (each an "Initial Purchaser" and, collectively, the "Initial
Purchasers"), each of whom has agreed to purchase the Company's 10% Senior
Subordinated Notes due 2009 (the "Initial Securities") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
as of January 18, 2002 (the "Purchase Agreement"), by and among the Company and
the Initial Purchasers (i) for the benefit of each Initial Purchaser and (ii)
for the benefit of the holders from time to time of the Securities (including
each Initial Purchaser). In order to induce the Initial Purchasers to purchase
the Initial Securities, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
5 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Advice: As defined in Section 6 hereof.
Broker-Dealer: Any broker or dealer registered with the
Commission under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The United States Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Securities to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of Initial
Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Effectiveness Target Date: As defined in Sections 3(a) hereof
with respect to the Exchange Offer Registration Statement and as defined
in Section 4(a) hereof with respect to a Shelf Registration Statement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Securities pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such Holders
for Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exchange Securities: The 10% Senior Subordinated Notes due 2009,
of the same series under the Indenture as the Initial Securities, to be
issued to Holders in exchange for Transfer Restricted Securities
pursuant to this Agreement.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Initial Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, and to non-U.S. persons pursuant to Regulation S under
the Securities Act.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of January 25, 2002, between
the Company and U.S. Bank National Association, as trustee (the
"Trustee"), pursuant to which the Securities are to be issued, as such
Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Initial Securities: The 10% Senior Subordinated Notes due 2009,
of the same series under the Indenture as the Exchange Securities, for
so long as such securities constitute Transfer Restricted Securities.
Initial Placement: The issuance and sale by the Company of the
Initial Securities to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: The National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto,
including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Registrar: As defined in the Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in each case, including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities: The Initial Securities and the Exchange Securities,
each individually, a "Security".
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Trust Indenture Act: The Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa to 77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Security: Each Security, until the earliest
to occur of (i) the date on which such Security is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of
the Securities Act or the date such Security is sold by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange
Offer Registration Statement (including delivery of the Prospectus
contained therein), (ii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and (iii) the date on
which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or may be sold pursuant to Rule 144(k) under
the Securities Act (or a similar provision then in effect).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled
to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), the Company shall
(i) cause to be filed with the Commission as soon as practicable after
the Closing Date, but in no event later than 60 days after the Closing
Date, a Registration Statement under the Securities Act relating to the
Exchange Securities and the Exchange Offer, (ii) use its best efforts to
cause such Registration Statement to become effective at the earliest
possible time, but in no event later than 150 days after the Closing
Date (as such date relates to the Exchange Offer Registration Statement,
the "Effectiveness Target Date"), (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) all necessary filings in connection with the
registration and qualification of the Exchange Securities to be made
under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Registration Statement, commence the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting registration of the
Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Securities held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer
open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less
than 20 business days after the date notice of the Exchange Offer is
mailed to the Holders. The Company shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No
securities other than the Securities shall be included in the Exchange
Offer Registration Statement. The Company shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable
date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution"
section contained in the Prospectus forming a part of the Exchange Offer
Registration Statement that any Broker-Dealer who holds Initial
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities
acquired directly from the Company), may exchange such Initial
Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements
of the Securities Act in connection with any resales of the Exchange
Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name
any such Broker-Dealer or disclose the amount of Securities held by any
such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.
The Company shall use its best efforts to keep the
Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c)
below to the extent necessary to ensure that it is available for resales
of Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period ending on the earlier of
(i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day (or shorter as provided in the foregoing
sentence) period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required
to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)
below have been complied with), (ii) for any reason the Exchange Offer
is not Consummated within 180 days after the Closing Date, or (iii) if
any Holder of Transfer Restricted Securities shall notify the Company
prior to the 20th day following the Consummation of the Exchange Offer
that (A) such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, or (B) such Holder may
not resell the Exchange Securities acquired by it in the Exchange Offer
to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such
Holder is a Broker-Dealer and holds Initial Securities acquired directly
from the Company or one of its affiliates, then, upon such Holder's
request, the Company shall:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement") on or prior to the
earliest to occur of (1) the 45th day after the date on which the
Company determines that it is not required to file the Exchange
Offer Registration Statement, and (2) the 45th day after the date
on which the Company receives the notice from a Holder of
Transfer Restricted Securities as contemplated by clause (iii)
above, (such earliest date being the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for resales of
all Transfer Restricted Securities the Holders of which shall
have provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission
on or before the 90th day after the Shelf Filing Deadline (as
such date relates to a Shelf Registration Statement, the
"Effectiveness Target Date").
The Company shall use its best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required
by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities by
the Holders of Transfer Restricted Securities entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date (or shorter
period that will terminate when all the Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf
Registration Statement).
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Holder not
materially misleading. No Holder shall be entitled to liquidated damages
pursuant to Section 5 unless and until such Holder shall have provided
all such information.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (ii) any of such Registration Statements has not
been declared effective by the Commission on or prior to the relevant
Effectiveness Target Date, (iii) the Exchange Offer has not been Consummated
within 30 business days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment to
such Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company hereby agrees that the
interest rate borne by the Transfer Restricted Securities shall be increased by
0.50% per annum during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by 0.50% per annum at the end of
each subsequent 90-day period, but in no event shall such increase exceed 1.50%
per annum. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the interest rate borne by the
relevant Transfer Restricted Securities shall be reduced to the original
interest rate borne by such Transfer Restricted Securities; provided, however,
that, if after any such reduction in interest rate, a different Registration
Default occurs, the interest rate borne by the relevant Transfer Restricted
Securities shall again be increased pursuant to the foregoing provisions.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Security
shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company shall comply with all of the
provisions of Section 6(c) below, shall use its best efforts to effect
such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof, and shall comply with the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Company hereby agrees to seek a
no-action letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such
Initial Securities. The Company hereby agrees to pursue the
issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to
effect a change of Commission policy. The Company hereby agrees,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases,
if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted, and (C) diligently pursue a
favorable resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of
the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an
affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with
any
person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer, and (C) it is
acquiring the Exchange Securities in its ordinary course of
business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's
preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in
Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (which may
include any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if
the resales are of Exchange Securities obtained by such Holder in
exchange for Initial Securities acquired by such Holder directly
from the Company.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company shall comply with all the
provisions of Section 6(c) below and shall use its best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as
expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus
required to permit resales of Securities by Broker-Dealers), the Company
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause
(A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its best efforts to cause
such amendment to be declared effective and
such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as
may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish without charge to each selling Holder named in
any Registration Statement, and each of the underwriter(s), if
any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which
documents will be subject to the
review of such Holders and underwriter(s) in connection with such
sale, if any, for a period of at least five business days, and
the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
documents incorporated by reference) to which an Initial
Purchaser of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within five business days after the
receipt thereof (such objection to be deemed timely made upon
confirmation of telecopy transmission within such period). The
objection of an Initial Purchaser or underwriter, if any, shall
be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus (other than documents filed prior to the filing of the
Registration Statement), provide copies of such document to each
selling Holder named in any Registration Statement, and to the
underwriter(s), if any, make the Company's representatives
available for discussion of such document and other customary due
diligence matters, and include such information in such document
prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by
each selling Holder, any managing underwriter participating in
any disposition pursuant to such Registration Statement and any
attorney or accountant retained by such managing underwriter or
any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company and
cause the Company's officers, directors and employees to supply
all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior
to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed
with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
reasonably request; the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement), make such representations and warranties and take all
such other actions in connection therewith that are customary in
such transactions in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
such extent as may be reasonably requested by any Holder of
Transfer Restricted Securities or underwriter in connection with
any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(1) furnish to each selling Holder and each underwriter,
if any, in such substance and scope as they may reasonably
request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the
date of the Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration
Statement:
(A) a certificate, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, signed
by (y) the President or any Vice President and (z) a
principal financial or accounting officer of the
Company, confirming, as of the date thereof, the matters
set forth in paragraphs (i), (ii) and (iii) of Section
5(e) of the Purchase Agreement, and such other matters
as such parties may reasonably request;
(B) an opinion, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company, covering the matters set forth
in Section 5(c) of the Purchase Agreement and such other
matters as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers
and other representatives of the Company,
representatives
of the independent public accountants for the Company,
the Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as
to materiality to a large extent upon facts provided to
such counsel by officers and other representatives of
the Company and without independent check or
verification), no facts came to such counsel's attention
that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case
of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel
may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data
included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(C) a customary comfort letter, dated as of the date
of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, from the Company's independent
accountants, in the customary form and covering matters
of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 5(a) of
the Purchase Agreement, without exception;
(2) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section;
and
(3) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this
clause (x), if any.
If at any time the representations and warranties of the
Company contemplated in this clause (x) cease to be true and
correct, the Company shall so advise the Initial Purchasers and
the underwriter(s), if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any
action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where
it is not then so subject;
(xii) shall issue, upon the request of any Holder of Initial
Securities covered by the Shelf Registration Statement, Exchange
Securities, having an aggregate principal amount equal to the
aggregate principal amount of Initial Securities surrendered to
the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Securities to be registered in the
name of such Holder or in the name of the purchaser(s) of such
Securities, as the case may be; in return, the Initial Securities
held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xi) above;
(xv) if any fact or event contemplated by Section
6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities which
are in a form eligible for deposit with the Depositary Trust
Company;
(xvii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration
Statement;
(xviii) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with
the terms of the Trust Indenture Act; and to execute and use its
best efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements
of Section 13 and Section 15 of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice; however, no such extension shall be taken into
account in determining whether liquidated damages are due pursuant to
Section 5 hereof or the amount of such liquidated damages, it being
agreed that the Company's option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration
Default for purposes of Section 5.
SECTION 7.REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Exchange
Securities to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Company and, subject to
Section 7(b) below, the Holders of Transfer Restricted Securities; (v)
all application and filing fees in connection with listing the Exchange
Securities on a national securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) In connection with any Registration Statement required
by this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Company will reimburse the Holders of Transfer Restricted Securities
being resold pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one
counsel, who shall be Shearman & Sterling or such other counsel as may
be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i)
each Holder and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii)
the respective officers, directors, partners, employees, representatives
and agents of any Holder or any controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against
any and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing, settling,
compromising, paying or defending any claim or action, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Holder), joint or several, caused by, based
upon, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus
(or any amendment or supplement thereto), or any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity
agreement shall be in addition to any liability which the Company may
otherwise have.
In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought
or asserted against any of the Indemnified Holders with respect to which
indemnity may be sought against the Company, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall
promptly notify the Company in writing (provided, however, that the
failure to give such notice shall not relieve the Company of its
obligations pursuant to this Agreement only to the extent the Company is
not prejudiced as a proximate result of such failure). The Company shall
be liable for any settlement of any such action or proceeding effected
with the Company's prior written consent, which consent shall not be
withheld unreasonably, and the Company agrees to indemnify and hold
harmless any Indemnified Holder from and against any loss, claim,
damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Holder is a party
thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company
and its directors, officers of the Company who sign a Registration
Statement, and any person controlling (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) the Company,
and the respective officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as
the foregoing indemnity from the Company to each of the Indemnified
Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or
officers or any such controlling person in respect of which indemnity
may be sought against a Holder of Transfer Restricted Securities, such
Holder shall have the rights and duties given the Company and the
Company or its directors or officers or such controlling person shall
have the rights and duties given to each Holder by the preceding
paragraph. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Securities giving rise to
such indemnification obligation.
(c) In case any action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from
an indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the
positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party,
representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b)
hereof (other than by reason of exceptions provided in those Sections)
in respect of any losses, claims, damages, liabilities, judgments,
actions or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Company shall
be deemed to be equal to the total gross proceeds from the Initial
Placement as set forth on the cover page of the Offering Memorandum),
the amount of liquidated damages which did not become payable as a
result of the filing of the Registration Statement resulting in such
losses, claims, damages, liabilities, judgments actions or expenses, and
such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Company, on the one hand, and
of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and
of the Indemnified Holder, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
by the Indemnified Holder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth
in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Holders (and its related
Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the dollar amount by which the proceeds received
by any such Holder upon the sale of the Securities giving rise to such
contribution obligation exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to
the respective principal amount of Transfer Restricted Securities held
by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, and during any period the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required
thereunder in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company hereby agrees that monetary
damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise
conflicts with the provisions hereof. The Company has not entered into
any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company's securities under any agreement
in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will
not take any action, or permit any change to occur, with respect to the
Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
or departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
facsimile, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company:
Longview Fibre Company
000 Xxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
with a copy to:
Xxxxxxx Coie LLP
0000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxxx
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if facsimiled; and on the next
business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee
at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted
Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement together with the
Purchase Agreement and together with the Escrow Agreement, the DTC
Agreement, the Securities, and the Indenture (each as defined in the
Purchase Agreement) is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company
with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
LONGVIEW FIBRE COMPANY
By:
------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BANC OF AMERICA SECURITIES LLC
SCOTIA CAPITAL (USA) INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
U.S. BANCORP XXXXX XXXXXXX INC.
BY: BANC OF AMERICA SECURITIES LLC
By:
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