EXHIBIT 4.5
==============================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of October 17, 1997
by and among
RCN CORPORATION
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
SALOMON BROTHERS INC
and
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
as Initial Purchasers
==============================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 17, 1997 by and among RCN CORPORATION, a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC ("Salomon") and
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC. ("▇▇▇▇▇▇▇▇▇▇" and, together with
▇▇▇▇▇▇▇ ▇▇▇▇▇ and Salomon, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
as of October 17, 1997 by and among the Company, and the Initial Purchasers
(the "Purchase Agreement"), which provides for, among other things, the sale
by the Company to the Initial Purchasers of an aggregate of $601,045,000
aggregate principal amount at maturity of the Company's 11 1/8% Senior
Discount Notes due 2007 (the "Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Interest," see Section 2(e) hereof.
"Advice" see the last paragraph Section 3 hereof.
"Applicable Period" see Section 3(s) hereof.
"Business Day" shall mean a day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New York
are required to be closed.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble to
this Agreement and also includes the Company's successors and permitted
assigns.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company; provided, however, that
such depositary must have an address in the Borough of Manhattan, in
The City of New York.
"Effectiveness Period" see Section 2(b) hereof.
"Effectiveness Target Date" see Section 2(e) hereof.
"Event Date" see Section 2(e) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Notes for Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form ▇-▇, ▇-▇ or S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchange Period" see Section 2(a) hereof.
"Exchange Notes" shall mean the 11 1/8% Senior Discount Notes
due 2007, issued by the Company under the Indenture containing terms
identical to the Notes (except that (i) the transfer restrictions with
respect to the Notes and all registration rights in respect thereof
shall be eliminated and (ii) the provisions relating to Additional
Interest shall be eliminated) to be offered to Holders of Notes in
exchange for Notes pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Transfer Restricted Notes, each of their direct and
indirect successors, assigns and transferees who become registered
owners of Transfer Restricted Notes under the Indenture and each
Participating Broker-Dealer that holds Exchange Notes for so long as
such Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes.
"Indenture" shall mean the Indenture relating to the Notes
dated as of October 17, 1997 between the Company, and The Chase
Manhattan Bank, as trustee, as the same may be amended from time to
time in accordance with the terms thereof.
"Initial Purchasers" see the preamble to this Agreement.
"Inspectors" see Section 3(m) hereof.
"Issue Date" shall mean the date on which the Notes are
originally issued.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Transfer Restricted Notes.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" shall have the meaning set forth in the
preamble to this agreement.
"Notes" see the preamble of this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(s) hereof.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Private Exchange" see Section 2(a) hereof.
"Private Exchange Notes" see Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Transfer Restricted Notes
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" see the preamble to this Agreement.
"Records" see Section 3(m) hereof.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all applicable SEC,
stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel
for Holders that are Initial Purchasers in connection with blue sky
qualification of any of the Exchange Notes or Transfer Restricted
Notes) and compliance with the rules of the NASD, (iii) all applicable
expenses incurred by the Company in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto,
and in preparing or assisting in preparing any other documents
relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, if any, (v) the fees and disbursements of
counsel for the Company, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Transfer Restricted
Notes on any securities exchange or exchanges, if the Company, in its
discretion, elects to make any such listing; but excluding fees of
counsel to the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
Transfer Restricted Notes by a Holder.
"Registration Statement" shall mean any registration statement
(including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement) of the Company which
covers any of the Exchange Notes or Transfer Restricted Notes pursuant
to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Event Date" see Section 2(b).
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) hereof which covers all of the Transfer Restricted Notes
or all of the Private Exchange Notes, as the case may be, on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Target Consummation Date" see Section 2(a).
"Target Effectiveness Date" see Section 2(a).
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Transfer Restricted Notes" means each Note until (i) the date
on which such has been exchanged by a person other than a broker-
dealer for an Exchange Note in the Exchange Offer, (ii) following the
exchange by a broker-dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Note has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (iv) the date on
which such Note is distributed to the public pursuant to Rule 144(k)
under the Securities Act (or any similar provision then in force, but
not Rule 144A under the Securities Act), (v) such Note shall have been
otherwise transferred by the holder thereof and a new Note not bearing
a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such Note shall not require
registration or qualification under the Securities Act or any similar
state law then in force or (vi) such Note ceases to be outstanding.
"Trustee" shall mean the trustee with respect to the Notes
under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. The Company shall, for the benefit of the
Holders, at the Company's cost, (i) unless the Exchange Offer would
not be permitted by applicable law or SEC policy, file with the SEC
within 45 days after the Closing Time an Exchange Offer Registration
Statement on an appropriate form under the Securities Act covering the
offer by the Company to the Holders to exchange all of the Transfer
Restricted Notes (other than Private Exchange Notes (as defined
below)) for a like principal amount of Exchange Notes, (ii) unless the
Exchange Offer would not be permitted by applicable law or SEC policy,
use its best efforts to have such Exchange Offer Registration
Statement declared effective under the Securities Act by the SEC not
later than 90 days after the Closing Time (the "Target Effectiveness
Date"), (iii) have such Registration Statement remain effective until
the closing of the Exchange Offer and (iv) unless the Exchange Offer
would not be permitted by applicable law or SEC policy, commence the
Exchange Offer and use its best efforts to issue, on or prior to the
30th Business Day after the date on which the Exchange Offer
Registration Statement was declared effective by the SEC (the "Target
Consummation Date"), Exchange Notes in exchange for all Notes tendered
prior thereto in the Exchange Offer. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Transfer
Restricted Notes for Exchange Notes (assuming that such Holder is not
an affiliate of the Company within the meaning of Rule 405 under the
Securities Act and is not a broker-dealer tendering Transfer
Restricted Notes acquired directly from the Company for its own
account, acquires the Exchange Notes in the ordinary course of such
Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of
distributing (within the meaning of the Securities Act) the Exchange
Notes) and to transfer such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities
Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a
period of not less than 20 Business Days after the date notice
thereof is mailed to the Holders (or longer if required by
applicable law) (such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Notes delivered for exchange, and a statement
that such Holder is withdrawing his election to have such Notes
exchanged; and
(v) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer the Initial
Purchasers hold any Notes acquired by them and having the status of an unsold
allotment in the initial distribution, the Company upon the request of any
Initial Purchaser shall, simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Notes held by such Initial
Purchaser, a like principal amount of debt securities of the Company that are
identical (except that such securities shall bear appropriate transfer
restrictions) to the Exchange Notes (the "Private Exchange Notes").
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical to all material
respects to the Indenture and which, in either case, has been qualified under
the TIA or is exempt from such qualification and shall provide that the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter. The Private Exchange Notes shall
be of the same series as and the Company shall use all commercially reasonable
efforts to have the Private Exchange Notes bear the same CUSIP number as the
Exchange Notes. The Company shall not have any liability under this Agreement
solely as a result of such Private Exchange Notes not bearing the same CUSIP
number as the Exchange Notes.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any
applicable interpretation of the staff of the SEC (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Company to proceed
with the Exchange Offer or the Private Exchange, and no material adverse
development shall have occurred in any existing action or proceeding with
respect to the Company and (iii) all governmental approvals shall have been
obtained, which approvals the Company deems necessary for the consummation of
the Exchange Offer or Private Exchange. As soon as practicable after the
close of the Exchange Offer and/or the Private Exchange, as the case may be,
the Company shall:
(i) accept for exchange all Transfer Restricted Notes or
portions thereof properly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the terms of
the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) accept for exchange all Notes properly tendered pursuant
to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Transfer Restricted Notes or portions thereof so
accepted for exchange by the Company, and issue, and cause the
Trustee under the Indenture to promptly authenticate and deliver
to each Holder, a new Exchange Note or Private Exchange Note, as
the case may be, equal in principal amount to the principal
amount of the Transfer Restricted Notes surrendered by such
Holder and accepted for exchange.
To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its best efforts
to complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than those set forth in the
immediately preceding paragraph. Each Holder of Transfer Restricted Notes who
wishes to exchange such Transfer Restricted Notes for Exchange Notes in the
Exchange Offer will be required to make certain customary representations in
connection therewith, including representations that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the Securities
Act, that any Exchange Notes to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Exchange Offer it has no arrangement with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes.
The Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers
shall have the right to contact such Holders and otherwise facilitate the
tender of Transfer Restricted Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Transfer Restricted Notes that are
Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Transfer Restricted Notes (other than Private Exchange Notes) pursuant to
Section 2(b) hereof.
(b) Shelf Registration. If (i) the Company is not permitted
to file the Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law
or SEC policy, (ii) the Exchange Offer is not for any other reason consummated
by the Target Consummation Date, (iii) any holder of Notes notifies the
Company within a specified time period that (a) due to a change in law or
policy, in the opinion of counsel, it is not entitled to participate in the
Exchange Offer, (b) due to a change in law or policy, in the opinion of
counsel, it may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and (x) the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such holder and (y) such prospectus is not
promptly amended or modified in order to be suitable for use in connection with
such resales for such holder and all similarly situated holders or (c) it is a
broker-dealer and owns Notes acquired directly from the Company or an
affiliate of the Company, (iv) the holders of a majority of the Notes may not
resell the Exchange Notes acquired by them in the Exchange Offer to the public
without restriction under the Securities Act and without restriction under
applicable blue sky or state securities laws or (v) the Exchange Offer shall
not have been consummated within 120 days after the Issue Date (the date of
any of (i)-(v), the "Shelf Registration Event Date"), then the Company
shall, at its cost, use its best efforts to cause to be filed a Shelf
Registration Statement prior to the later of (A) 30 days after the Shelf
Registration Event Date or (B) 150 days after the Issue Date and use its
best efforts to cause the Shelf Registration Statement to be declared
effective by the SEC on or prior to 60 days after such obligation arises.
Each Holder as to which any Shelf Registration is being effected agrees to
furnish to the Company all information with respect to such Holder
necessary to make any information previously furnished to the Company by
such Holder not materially misleading.
The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective for a period of two years from
the effective date of the Shelf Registration Statement (subject to extension
pursuant to the last paragraph of Section 3 hereof) (or such shorter period
that will terminate when all of the Transfer Restricted Notes covered by such
Shelf Registration Statement have been sold pursuant thereto) or cease to be
outstanding (the "Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement shall be
extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities
Act and as otherwise provided herein. The Company shall not permit any
securities other than Transfer Restricted Notes to be included in the Shelf
Registration. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, if required by the rules, regulations
or instructions applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act or by any other
rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Transfer Restricted Notes copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or 2(b) hereof
and the reasonable fees and expenses of one counsel, if any, designated in
writing by the Majority Holders to act as counsel for the Holders of the
Transfer Restricted Notes in connection with a Shelf Registration Statement.
Except as provided in the preceding sentence, each Holder shall pay all
expenses of its counsel, underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Transfer
Restricted Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Transfer
Restricted Notes pursuant to a Shelf Registration Statement is interfered with
by any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement will be deemed
not to have been effective during the period of such interference, until the
offering of Transfer Restricted Notes may legally resume. The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if it
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Transfer
Restricted Notes covered thereby not being able to exchange or offer and sell
such Transfer Restricted Notes during that period, unless such action is
required by applicable law and except as otherwise provided in the second
paragraph of Section 2(e) below.
(e) Additional Interest. In the event that (i) the applicable
Registration Statement is not filed with the SEC on or prior to the date
specified herein for such filing, (ii) the applicable Registration Statement
is not declared effective on or prior to the date specified herein for such
effectiveness after such obligation arises (the "Effectiveness Target Date"),
(iii) if the Exchange Offer is required to be consummated hereunder, the
Company fails to consummate the Exchange Offer within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) the applicable Registration Statement is filed and declared
effective during the period effectiveness is required by Section 2(e) and 3(a)
but shall thereafter cease to be effective or usable without being succeeded
immediately by an additional Registration Statement covering the Transfer
Restricted Notes which has been filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
interest rate on the Transfer Restricted Notes as to which such Registration
Default relates will increase ("Additional Interest"), with respect to the each
90-day period while a Registration Default is continuing immediately following
the occurrence of such Registration Default in an amount equal to 0.25% per
annum of the principal amount of the Notes until all Registration Defaults
have been cured, subject to a maximum amount of 1.00% of the principal amount
of the Notes. Upon (w) the filing of the applicable Registration Statement
(in the case of clause (i) of the preceding sentence), (x) the effectiveness
of the applicable Registration Statement (in the case of clause (ii) of the
preceding sentence), (y) the issuance of Exchange Notes in exchange for all
Notes properly tendered and not withdrawn in the Exchange Offer (in the case
of clause (iii) of the preceding sentence) or (z) the effectiveness of the
applicable Registration Statement which has ceased to be effective (in the
case of clause (iv) of the preceding sentence, Additional Interest as a result
of the Registration Default described in such clause shall cease to accrue
(but any accrued amount shall be payable) and the interest rate on the
applicable Notes will revert to the original rate if no other Registration
Default has occurred and is continuing. Additional Interest shall be computed
based on the actual number of days elapsed during which any such Registration
Defaults exist.
The Company shall notify the Trustee within three Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Transfer Restricted Notes, on or before the
immediately following April 15 or October 15, immediately available funds in
sums sufficient to pay the Additional Interest then due. The Additional
Interest due shall be payable on each April 15 and October 15 to the record
Holder of Notes entitled to receive the interest payment to be paid on such
date as set forth in the Indenture. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the day following the
applicable Event Date.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement
or Registration Statements as prescribed by Sections 2(a) and
2(b) hereof within the relevant time period specified in Section
2 hereof on the appropriate form under the Securities Act, which
form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the
Transfer Restricted Notes by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use
their best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2
hereof. The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of
which the Holders must provide information for inclusion therein
without the Holders being afforded an opportunity to review such
documentation a reasonable time prior to the filing of such
document if the Majority Holders or such Participating Broker-
Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may
be; and cause each Prospectus to be supplemented by any required
prospectus supplement and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition of
all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may
be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this
Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Transfer Restricted Notes, at least three Business Days
prior to filing, that a Shelf Registration Statement with respect
to the Transfer Restricted Notes is being filed and advising such
Holder that the distribution of Transfer Restricted Notes will be
made in accordance with the method selected by the Majority
Holders; and (ii) furnish to each Holder of Transfer Restricted
Notes, without charge, as many copies of each Prospectus, and any
amendment or supplement thereto and such other documents as such
Holder may reasonably request, in order to facilitate the
disposition of the Transfer Restricted Notes; and (iii) subject
to the last paragraph of Section 3 hereof, hereby consent to the
use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Transfer Restricted Notes in
connection with the offering and sale of the Transfer Restricted
Notes covered by such Prospectus or any amendment or supplement
thereto subject to the limitations on the use thereof provided in
Sections 2(b) and 2(c);
(d) in the case of a Shelf Registration, use its best
efforts to register or qualify, as may be required by applicable
law, the Transfer Restricted Notes under all applicable state
securities or "blue sky" laws of such jurisdictions by the time
the applicable Registration Statement is declared effective by
the SEC as any Holder of Transfer Restricted Notes covered by a
Registration Statement shall reasonably request in advance of
such date of effectiveness, and do any and all other acts and
things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such
jurisdiction of such Transfer Restricted Notes owned by such
Holder; provided, however, that the Company shall not be required
to (i) qualify as a foreign corporation or as a broker or dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any
general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers who have notified the Company that
they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof,
notify each Holder of Transfer Restricted Notes, or such
Participating Broker-Dealers, as the case may be, their counsel,
if any, promptly and confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-
effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if the Company receives
any notification with respect to the suspension of the
qualification of the Transfer Restricted Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction or the initiation of any proceeding for
such purpose, (v) of the happening of any event or the failure of
any event to occur or the discovery of any facts or otherwise,
during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or
the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (vi) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration
Statement as soon as practicable;
(g) in the case of a Shelf Registration, furnish to each
Holder of Transfer Restricted Notes, without charge, at least one
conformed copy of each Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Transfer Restricted Notes to facilitate the
timely preparation and delivery of certificates not bearing any
restrictive legends representing Notes covered by such Shelf
Registration to be sold and relating to the subsequent transfer
of such Notes; and cause such Transfer Restricted Notes to be in
such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders
may reasonably request at least two Business Days prior to the
closing of any sale of Transfer Restricted Notes;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v) or
3(e)(vi) hereof, use their best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of the Transfer Restricted
Notes, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and to notify each Holder
to suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or
omission;
(j) obtain a CUSIP number for all Exchange Notes or Transfer
Restricted Notes, as the case may be, not later than the
effective date of a Registration Statement, and provide the
Trustee with certificates for the Exchange Notes or the Transfer
Restricted Notes, as the case may be, in a form eligible for
deposit with the Depositary;
(k) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "TIA") in connection with
the registration of the Exchange Notes or Transfer Restricted
Notes, as the case may be, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with
the terms of the TIA and execute, and use its best efforts to
cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) and take all such
other appropriate actions as are reasonably requested in order to
expedite or facilitate the registration or the disposition of
such Transfer Restricted Notes, and in such connection, (i) make
such representations and warranties to Holders of such Transfer
Restricted Notes with respect to the business of the Company and
its subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Company and updates thereof in
form and substance reasonably satisfactory to the Holders of a
majority in principal amount of the Transfer Restricted Notes
being sold, addressed to each selling Holder covering the matters
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested
by such Holders; (iii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement, addressed to the selling Holders of
Transfer Restricted Notes, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and
such other matters as reasonably requested by such selling
Holders; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to the Company
and the Holders of a majority in aggregate principal amount of
Transfer Restricted Notes covered by such Registration with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such selling Holders). The above
shall be done at each closing in respect of the sale of Transfer
Restricted Notes, or as and to the extent required thereunder;
(m) if (1) a Shelf Registration is filed pursuant to Section
2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by each such
person who would be an "underwriter" as a result of either (i)
the sale by such person of Notes covered by such Shelf
Registration Statement or (ii) the sale during the Applicable
Period by a Participating Broker-Dealer of Exchange Notes
(provided that a Participating Broker-Dealer shall not be deemed
to be an underwriter solely as a result of it being required to
deliver a prospectus in connection with any resale of Exchange
Notes) and any attorney, accountant or other agent retained by
any such person (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its
subsidiaries to supply all information in each case reasonably
requested by any such Inspector in connection with such
Registration Statement. Records which the Company determines, in
good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary
to avoid or correct a material misstatement or omission in such
Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such Records
has been made generally available to the public. Each selling
Holder of such Transfer Restricted Notes and each such
Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company
unless and until such is made generally available to the public.
Each selling Holder of such Transfer Restricted Notes and each
such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(n) comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 60 days after
the end of any 12-month period (or 135 days after the end of any
12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Transfer Restricted
Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date
of a Registration Statement, which statements shall cover said
12-month periods;
(o) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company addressed
to the Trustee for the benefit of all Holders of Transfer
Restricted Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, and which includes an
opinion that (i) the Company has duly authorized, executed and
delivered the Exchange Notes and Private Exchange Notes, and (ii)
each of the Exchange Notes or the Private Exchange Notes, as the
case may be, constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with
its respective terms (in each case, with customary exceptions);
(p) if an Exchange Offer or a Private Exchange is to be
consummated, upon proper delivery of the Transfer Restricted
Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall
▇▇▇▇, or cause to be marked, on such Transfer Restricted Notes
and on the books of the Trustee, the Transfer Agent, the
Registrar and the Depositary delivered by such Holders that such
Transfer Restricted Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be;
but in no event shall such Transfer Restricted Notes be marked as
paid or otherwise satisfied solely as a result of being exchanged
for Exchange Notes or Private Exchange Notes in the Exchange
Offer or the Private Exchange, as the case may be;
(q) cooperate with each seller of Transfer Restricted Notes
covered by any Registration Statement participating in the
disposition of such Transfer Restricted Notes and one counsel
acting on behalf of all such sellers in connection with the
filings, if any, required to be made with the NASD;
(r) use its best efforts to take all other steps necessary
to effect the registration of the Transfer Restricted Notes
covered by a Registration Statement contemplated hereby; and
(s) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," which
section shall be reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as
representative of the Initial Purchasers, and which shall contain
a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter"
status of any broker-dealer (a "Participating Broker-Dealer")
that holds Transfer Restricted Notes acquired for its own account
as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes to be
received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable
judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, as representative of the Initial
Purchasers or such other representative, represent the prevailing
views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Notes for Transfer
Restricted Notes pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale
of such Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration
Statement, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request; (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement
thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-
Dealers, in connection with the sale or transfer of the Exchange
Notes covered by the Prospectus or any amendment or supplement
thereto, (iv) use their best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of
time as such Persons must comply with such requirements in order
to resell the Exchange Notes; provided, however, that such period
shall not be required to exceed 90 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the
"Applicable Period"), and (iv) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Transfer
Restricted Notes acquired for its own account as a result of
market-making activities or other trading activities, it
will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange
Notes received in respect of such Transfer Restricted Notes
pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making
the acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Transfer Restricted
Notes, such broker-dealer will not be deemed to admit that it is
an underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company agrees to deliver, upon request, to the
Trustee or to Participating Broker-Dealers upon consummation of
the Exchange Offer (i) an opinion of counsel substantially in the
form attached hereto as Exhibit A, and (ii) an officers'
certificate containing certifications substantially similar to
those set forth in Section 7(d) of the Purchase Agreement.
The Company may require each seller of Transfer Restricted
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the proposed distribution of such
Transfer Restricted Notes, as the Company may from time to time reasonably
request in writing. The Company may exclude from such registration the
Transfer Restricted Notes of any seller who fails to furnish such information
within a reasonable time (not to exceed 10 Business Days) after receiving such
request and shall be under no obligation to compensate any such seller for any
lost income, interest or other opportunity forgone, or any liability incurred,
as a result of the Company's decision to exclude such seller.
In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof, that are seeking to sell
Exchange Notes and are required to deliver Prospectuses, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v), 3(e)(vi)
or 3(e)(vii) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Notes pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Notes or Exchange Notes, as the
case may be, current at the time of receipt of such notice. If the Company
shall give any such notice to suspend the disposition of Transfer Restricted
Notes or Exchange Notes, as the case may be, pursuant to a Registration
Statement, the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to the Registration Statement and, in the case of an amendment, have such
amendment declared effective as soon as practicable and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
the Company shall have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, each
Participating Broker-Dealer, each underwriter who participates in an offering
of Transfer Restricted Notes, their respective affiliates, each Person, if
any, who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of
any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment or
supplement thereto), covering Transfer Restricted Notes or
Exchange Notes, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any court or governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that
(subject to Sections 4(c) and 4(d) below) any such settlement is
effected with the prior written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel (in
addition to any local counsel) chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇, such
Holder, such Participating Broker-Dealer or any underwriter
(except to the extent otherwise expressly provided in Section
4(c) hereof)), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with written information furnished in writing to the Company by
or on behalf of such Initial Purchaser, such Holder, such Participating
Broker-Dealer or any underwriter with respect to such Initial Purchaser,
Holder, Participating Broker-Dealer or underwriter, as the case may be,
expressly for use in the Registration Statement (or any amendment or
supplement thereto) or any Prospectus (or any amendment or supplement thereto)
or (ii) contained in any preliminary prospectus if such Initial Purchaser,
such Holder, such Participating Broker-Dealer or such underwriter failed to
send or deliver a copy of the Prospectus (in the form it was first provided to
such parties for confirmation of sales) to the Person asserting such losses,
claims, damages or liabilities on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where the Company shall have previously furnished copies thereof to such
Initial Purchaser, such Holder, such Participating Broker-Dealer or such
underwriter, as the case may be, in accordance with this Agreement, at or
prior to the written confirmation of the sale of such Notes to such Person
and the untrue statement contained in or the omission from the preliminary
prospectus was corrected in the Final Prospectus (or any amendment or
supplement thereto). Any amounts advanced by the Company to an indemnified
party pursuant to this Section 4 as a result of such losses shall be
returned to the Company if it shall be finally determined by a court of
competent jurisdiction in a judgment not subject to appeal or final review
that such indemnified party was not entitled to indemnification by the
Company.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each Initial Purchaser, each
underwriter who participates in an offering of Transfer Restricted Notes and
the other selling Holders and each of their respective directors and each
Person, if any, who controls any of the Company, any Initial Purchaser, any
underwriter or any other selling Holder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment or supplement thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of such selling Holder with respect to such Holder expressly for use in the
Registration Statement (or any supplement thereto), or any such Prospectus (or
any amendment thereto); provided, however, that, in the case of the Shelf
Registration Statement, no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Transfer Restricted Notes pursuant to the Shelf Registration
Statement; provided, further, however, that for purposes of Section 4(a)(iii),
such counsel shall (subject to Section 4(c) hereof) be chosen by the Company.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as
a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 4(a) above, one counsel to
all the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the
case of parties indemnified pursuant to Section 4(b) above, counsel to all the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, if it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes a full and unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and the offer and sale of any Notes 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.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel pursuant to Section 4(a)(iii) above, then such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, the Initial
Purchasers and the Holders, as applicable, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by such indemnity agreement incurred by the Company, the Initial Purchasers
and the Holders; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the Initial
Purchasers and the Holders, such parties shall contribute to such aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by such indemnity agreement in such proportion as shall be appropriate to
reflect the relative fault of the Company on the one hand and of the Holder of
Transfer Restricted Notes, the Participating Broker-Dealer or Initial
Purchaser, as the case may be, on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the
Holder of Transfer Restricted Notes, the Participating Broker-Dealer or the
Initial Purchasers, as the case may be, on the other hand 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 Holder
of Transfer Restricted Notes, the Participating Broker-Dealer or the Initial
Purchasers, as the case may be, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Holders of the Transfer Restricted Notes
and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4.
For purposes of this Section 4, each affiliate of any Person,
if any, who controls a Holder of Transfer Restricted Notes, an Initial
Purchaser or a Participating Broker-Dealer within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such other Person, and each director of the Company,
each affiliate of the Company, each executive officer of the Company who
signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company.
5. Miscellaneous.
(a) Rule 144 and Rule 144A. The Company shall provide to each
Holder such reports as are required under Section 10.24 of the Indenture and,
upon the request of any Holder of Transfer Restricted Notes (a) make publicly
available such information as is necessary to permit sales pursuant to Rule
144 under the Securities Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the
Securities Act and it will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, and (c) take such further action, if
any, that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the
reasonable request of any Holder of Transfer Restricted Notes, the Company
will deliver to such Holder a written statement as to whether they have
complied with such requirements.
(b) No Inconsistent Agreements. The rights granted to the
Holders hereunder do not, and will not for the term of this Agreement in any
way conflict with and are not, and will not during the term of this Agreement
be inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any other agreements entered into by
the Company.
(c) Amendments and Waivers. The provisions of this Agreement,
including provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the Company
and the Majority Holders; provided, however, that no amendment, modification,
or supplement or waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any Holder of
Transfer Restricted Notes or the Company unless consented to in writing by such
Holder of Transfer Restricted Notes or the Company, as the case may be.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 5(d), which address initially is, with respect to
the Initial Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Company, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 5(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next Business Day, if timely delivered 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.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Notes in violation of the terms of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Notes, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Notes, such
Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such Person
shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each of the Initial Purchasers
and each Holder shall be a third party beneficiary of the agreements made
hereunder between the Company, on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only 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, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times of day
refer to New York City time.
(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) Notes Held by the Company or any of its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Notes is required hereunder, Transfer Restricted Notes
held by the Company or any of their affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
RCN CORPORATION
By:
-------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By:
---------------------------------
Name:
Title:
Exhibit A
---------
Form of Opinion of Counsel
--------------------------
1. Each of the Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto
and other financial and statistical information and supplemental schedules
included or referred to therein or omitted therefrom and the Form T-1, as to
which such counsel need express no opinion), complies as to form in all
material respects with the applicable requirements of the Securities Act and
the applicable rules and regulations promulgated under the Securities Act.
2. In the course of such counsel's review and discussion of the
contents of the Exchange Offer Registration Statement and the Prospectus with
certain officers and other representatives of the Company and representatives
of the independent certified public accountants of the Company, but without
independent check or verification or responsibility for the accuracy,
completeness or fairness of the statements contained therein, on the basis of
the foregoing (relying as to materiality to a large extent upon
representations and opinions of officers and other representatives of the
Company), no facts have come to such counsel's attention which cause such
counsel to believe that the Exchange Offer Registration Statement (other than
the financial statements, notes and schedules thereto and other financial and
statistical information contained or referred to therein and the Form T-1, as
to which such counsel need express no belief), at the time the Exchange Offer
Registration Statement became effective and at the time of the consummation of
the Exchange Offer, 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 contained therein not misleading, or that the Prospectus
(other than the financial statements, notes and schedules thereto and other
financial and statistical information contained or referred to therein, as to
which such counsel need express no belief) contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.