Exhibit 4.2
SENIOR NOTES
REGISTRATION RIGHTS AGREEMENT
Dated as of August 21, 1998
by and among
COAXIAL COMMUNICATIONS OF CENTRAL OHIO, INC.,
PHOENIX ASSOCIATES,
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
and
THE INITIAL PURCHASER
named herein
TABLE OF CONTENTS
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Page
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1. Definitions............................................................. 1
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2. Exchange Offer.......................................................... 5
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3. Shelf Registration...................................................... 9
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4. Additional Interest..................................................... 11
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5. Registration Procedures................................................. 13
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6. Registration Expenses................................................... 24
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7. Indemnification......................................................... 25
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8. Rules 144 and 144A...................................................... 29
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9. Underwritten Registrations.............................................. 30
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10. Miscellaneous.......................................................... 30
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(a) Remedies........................................................ 30
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(b) Enforcement..................................................... 30
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(c) No Inconsistent Agreements...................................... 30
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(d) Adjustments Affecting Registrable Notes......................... 31
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(e) Amendments and Waivers.......................................... 31
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(f) Notices......................................................... 31
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(g) Successors and Assigns.......................................... 32
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(h) Counterparts.................................................... 32
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(i) Headings........................................................ 32
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(j) Governing Law................................................... 32
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(k) Severability.................................................... 33
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(l) Entire Agreement................................................ 33
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(m) Notes Held by the Issuers, the Guarantor or their Affiliates.... 33
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SENIOR NOTES REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
August 21, 1998, by and among Coaxial Communications of Central Ohio, Inc., an
Ohio corporation ("Coaxial"), Phoenix Associates, a Florida general partnership
("Phoenix" and together with Coaxial, the "Issuers") and Insight Communications
of Central Ohio, LLC, a Delaware limited liability company (the "Guarantor") and
CIBC Oppenheimer Corp. (the "Initial Purchaser").
This Agreement is entered into in connection with the Restructuring
Agreement, dated as of August 17, 1998 among the Issuers, the Guarantor and the
Initial Purchaser (the "Restructuring Agreement") relating to the sale by the
Issuers to the Initial Purchaser of $140,000,000 aggregate principal amount of
the Issuers' 10% Senior Notes due 2006 (the "Notes"). In order to induce the
Initial Purchaser to enter into the Restructuring Agreement, the Issuers and the
Guarantor have agreed to provide the registration rights set forth in this
Agreement to the Initial Purchaser and its direct and indirect transferees and
assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchaser's obligation to purchase the Notes under the Restructuring
Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
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Advice: See Section 5.
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Applicable Period: See Section 2(b).
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Closing: See the Restructuring Agreement.
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Effectiveness Date: The 150th day after the Issue Date.
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Effectiveness Period: See Section 3(a).
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Event Date: See Section 4(b).
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
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Exchange Offer: See Section 2(a).
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Exchange Registration Statement: See Section 2(a).
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Filing Date: The 60th day after the Issue Date.
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Holder: Any holder of a Registrable Note or Registrable Notes.
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Indemnified Person: See Section 7(c).
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Indemnifying Person: See Section 7(c).
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Indenture: The Indenture, dated as of August 21, 1998, among the
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Issuers, the Guarantor and Bank of Montreal Trust Company, as trustee, pursuant
to which the Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchaser: See the introductory paragraph to this Agreement.
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Initial Shelf Registration: See Section 3(a).
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Inspectors: See Section 5(o).
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Issue Date: The date on which the original Notes are sold to the
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Initial Purchaser pursuant to the Restructuring Agreement.
Issuers: See the introductory paragraph to this Agreement.
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Lien: See the Indenture.
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NASD: See Section 5(t).
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Notes: See the second introductory paragraph to this Agreement.
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Participant: See Section 7(a).
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Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, limited liability company,
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partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
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Private Exchange Notes: See Section 2(b).
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Records: See Section 5(o).
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Registrable Notes: The Notes upon original issuance of the Notes and
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at all times subsequent thereto and, if issued, the Private Exchange Notes,
until in the case of any such Notes or any such Private Exchange Notes, as the
case may be, (i) a Registration Statement covering such Notes or such Private
Exchange Notes has been declared effective by the SEC and such Notes or such
Private Exchange Notes, as the case may be, have been disposed of in accordance
with such effective Registration Statement, (ii) such Notes or such Private
Exchange Notes, as the case may be, are sold in compliance with Rule 144, (iii)
in the case of any Note, such Note has been exchanged for an Exchange Note or
Exchange Notes pursuant to an Exchange Offer or (iv) such Notes or such Private
Exchange Notes, as the case may be, cease to be outstanding.
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Registration Default: See Section 4(a).
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Registration Statement: Any registration statement of the Issuers and
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the Guarantor, including, but not limited to, the Exchange Registration
Statement, which covers any of the Registrable Notes pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Restructuring Agreement: See the second introductory paragraph to
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this Agreement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
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Shelf Registration: See Section 3(b).
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Subsequent Shelf Registration: See Section 3(b).
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
Underwritten registration or underwritten offering: A registration in
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which securities of the Issuers and the Guarantor are sold to an underwriter(s)
for reoffering to the public.
2. Exchange Offer
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(a) Each of the Guarantor and the Issuers agrees to use its
reasonable best efforts to file with the SEC as soon as practicable after
the Closing, but in no event later than the Filing Date, an offer to
exchange (the "Exchange Offer") any and all of the Registrable Notes (other
than the Private Exchange Notes, if any) for a like aggregate principal
amount of debt securities of the Issuers which are identical to the Notes
(the "Exchange Notes") (and which are entitled to the benefits of the
Indenture or a trust indenture which is substantially identical to the
Indenture in all material respects (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply
with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under
the TIA), except that the Exchange Notes (other than the Private Exchange
Notes, if any) shall have been registered pursuant to an effective
Registration Statement under the Securities Act and will not contain terms
with respect to transfer restrictions. The Exchange Offer will be
registered under the Securities Act on the appropriate form (the "Exchange
Registration Statement") and will comply with all applicable tender offer
rules and regulations under the Exchange Act. Each of the Guarantor and the
Issuers agrees to use its reasonable best efforts to (x) cause the Exchange
Registration Statement to become effective under the Securities Act on or
before the Effectiveness Date; (y)
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keep the Exchange Offer open for at least 20 business days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) consummate the Exchange Offer on or prior to the
180th day following the Issue Date. If after such Exchange Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act, that such Holder is not an affiliate of any of the Issuers, the
Guarantor or their subsidiaries within the meaning of Rule 405 promulgated under
the Securities Act or if it is such an affiliate, that it will comply with the
registration and prospectus delivery requirements of the Securities Act, to the
extent applicable and that it is not acting on behalf of any Person who could
not truthfully make the foregoing representations. Upon consummation of the
Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely with respect to
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Registrable Notes that are Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers, and the Issuers and the Guarantor shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to
Section 3 of this Agreement.
(b) The Issuers and the Guarantor shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, 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
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broker-dealer that is the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"),
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 the Initial Purchaser, represent the prevailing views of the staff of the
SEC. Such "Plan of Distribution" section shall also allow the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of
the Securities Act, including all Participating Broker-Dealers, and include
a statement describing the means by which Participating Broker-Dealers may
resell the Exchange Notes.
Each of the Guarantor and the Issuers shall use its reasonable best
efforts to keep the Exchange 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
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that such period shall not exceed 180 days (or such longer period if extended
pursuant to the last paragraph of Section 5) (the "Applicable Period").
If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having, or which are reasonably likely to be
determined to have, the status as an unsold allotment in the initial
distribution, the Issuers and the Guarantor upon the request of the Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by the Initial Purchaser, a like
principal amount of debt securities of the Issuers that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on the Private Exchange Notes. If
possible, the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor
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or, if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers and the Guarantor
shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York which may be the
Trustee or an affiliate thereof; and
(iii) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers and the Guarantor shall:
(i) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder
of Notes, Exchange Notes or Private Exchange Notes, as the case may be,
equal in principal amount to the Notes of such Holder so accepted for
exchange.
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture substantially identical to the Indenture,
which in either event will provide that (1) the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and (2) the
Private Exchange Notes will be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such
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indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes will vote and consent together on all matters as one class and that
neither the Exchange Notes, the Private Exchange Notes nor the Notes will have
the right to vote or consent as a separate class on any matter.
(a) If (1) prior to the consummation of the Exchange Offer, the
Issuers and the Guarantor or Holders of at least a majority in aggregate
principal amount of the Registrable Notes reasonably determine in good
faith that (i) the Exchange Notes would not, upon receipt, be tradeable by
such Holders which are not affiliates (within the meaning of the Securities
Act) of the Issuers and the Guarantor without restriction under the
Securities Act and without restrictions under applicable state securities
laws, (ii) the interests of the Holders under this Agreement would be
adversely affected by the consummation of the Exchange Offer or (iii) after
conferring with counsel, the SEC is unlikely to permit the commencement of
the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the
consummation of the Private Exchange, any holder of the Private Exchange
Notes so requests or (3) the Exchange Offer is commenced and not
consummated within 180 days of the Issue Date, then the Issuers and the
Guarantor shall promptly deliver to the Holders and the Trustee written
notice thereof (the "Shelf Notice") and shall file an Initial Shelf
Registration pursuant to Section 3. Following the delivery of a Shelf
Notice to the Holders of Registrable Notes (in the circumstances
contemplated by clauses (1) and (3) of the preceding sentence), the Issuers
and the Guarantor shall not have any further obligation to conduct the
Exchange Offer or the Private Exchange under this Section 2.
(b) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder represents and
warrants to the Issuers and the Guarantor that, (A) it is not an affiliate
of the Issuers and the Guarantor, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer, and (C) it is acquiring the Exchange Notes in its
ordinary course of business. Each Holder hereby acknowledges and agrees
that any Participating Broker-
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Dealer and any Holder using the Exchange Offer to participate in a
distribution of Exchange Notes (1) could not under SEC policy as in effect
on the date of this Agreement rely on the position of the SEC enunciated in
Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital
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Holdings Corporation (available May 13, 1988), as interpreted in the SEC's
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letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters, and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction must 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 Notes obtained by such Holder in exchange for Notes
acquired by such Holder directly from the Issuers and the Guarantor or an
affiliate thereof.
1. Shelf Registration
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If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration. The Issuers and the Guarantor
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shall prepare and file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Registrable Notes (the "Initial Shelf Registration"). If the Issuers
and the Guarantor shall have not yet filed an Exchange Registration
Statement, the Issuers and the Guarantor shall use their best efforts to
file with the SEC the Initial Shelf Registration on or prior to the Filing
Date. In any other instance, the Issuers and the Guarantor shall use their
reasonable best efforts to file with the SEC the Initial Shelf Registration
within 30 days of the delivery of the Shelf Notice. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by such Holders in the
manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Issuers and the Guarantor shall not
permit any securities other than the Registrable Notes to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below). The
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Issuers and the Guarantor shall use their reasonable best efforts to cause
the Initial Shelf Registration to be declared effective under the
Securities Act, if an Exchange Registration Statement has not yet been
declared effective, on or prior to the Effectiveness Date, or, in any other
instance, as soon as practicable thereafter and in no event later than 45
days after filing of the Initial Shelf Registration, and to keep the
Initial Shelf Registration continuously effective under the Securities Act
until the date which is 24 months from the date on which such Initial Shelf
Registration is declared effective (subject to extension pursuant to the
last paragraph of Section 5 hereof), or such shorter period ending when (i)
all Registrable Notes covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration or (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes has been declared effective under the Securities Act (the
"Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
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or any Subsequent Shelf Registration ceases to be effective for any reason
at any time during the Effectiveness Period (other than because of the sale
of all the securities registered thereunder), the Issuers and the Guarantor
shall use their reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall
within 45 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional
"shelf" Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Issuers and the Guarantor shall use their
reasonable best efforts to cause the Subsequent Shelf Registration to be
declared effective as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to
the number of days in the Effectiveness Period less the aggregate number of
days during which the Initial Shelf Registration or any Subsequent Shelf
Registration was previously continuously effective. As used herein the
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term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers and the Guarantor shall
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promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or if
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any
underwriter(s) of such Registrable Notes.
2. Additional Interest
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(a) The Issuers, the Guarantor and the Initial Purchaser agree that
the Holders of Registrable Notes will suffer damages if the Issuers and the
Guarantor fail to fulfill their obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Issuers and the Guarantor agree to
pay additional interest on the Notes ("Additional Interest") under the
circumstances and to the extent set forth below:
(i) if the Exchange Registration Statement has not been filed on or prior
to the Filing Date;
(ii) if the Exchange Registration Statement has not been declared
effective on or prior to the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section 2(c) has not
been filed on or prior to the date required by Section 3(a);
(iv) if an Initial Shelf Registration required by Section 2(c) has not
been declared effective on or prior to the date required by Section 3(a);
and/or
(v) if (A) the Issuers have not exchanged the Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to 180 days after the Issue Date or (B) the Exchange
Registration Statement ceases to be effective at any time prior to the time
that the Exchange Offer is consummated or (C) if
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applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period;
(each such event referred to in clauses (i) through (v) above is a "Registration
Default"), the sole remedy available to Holders of the Notes will be the
immediate accrual of Additional Interest as follows: the per annum interest
rate on the Notes will increase by 50 basis points during the first 90-day
period following the occurrence of a Registration Default and until it is waived
or cured; and the per annum interest rate will increase by an additional 25
basis points for each subsequent 90-day period during which the Registration
Default remains uncured, up to a maximum additional interest rate of 200 basis
points per annum, provided, however, that only Holders of Private Exchange Notes
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shall be entitled to receive Additional Interest as a result of a Registration
Default pursuant to clause (iii) or (iv), provided, further, that (1) upon the
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filing of the Exchange Registration Statement or the Initial Shelf Registration
(in the case of (i) above), (2) upon the effectiveness of the Exchange
Registration Statement or a Shelf Registration (in the case of (ii) above), (3)
upon the filing of the Shelf Registration (in the case of (iii) above), (4) upon
the effectiveness of the Shelf Registration (in the case of (iv) above), or (5)
upon the exchange of Exchange Notes for all Notes tendered (in the case of
(v)(A) above), or upon the effectiveness of the Exchange Registration Statement
which had ceased to remain effective (in the case of (v)(B) above), or upon the
effectiveness of the Shelf Registration which had ceased to remain effective (in
the case of (v)(C) above), Additional Interest on the Notes as a result of such
clause (i), (ii), (iii), (iv) or (v) (or the relevant subclause thereof), as the
case may be, shall cease to accrue and the interest rate on the Notes will
revert to the interest rate originally borne by the Notes.
(b) The Issuers and the Guarantor shall notify the Trustee within
one business day after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to (a) of this
Section 4 will be payable in cash semi-annually on each February 15 and
August 15 (to the Holders of record on the February 1 and August 1
immediately preceding such dates), commencing with the first such date
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occurring after any such Additional Interest commences to accrue and until
such Registration Default is cured, by depositing with the Trustee, in
trust for the benefit of such Holders, immediately available funds in sums
sufficient to pay such Additional Interest. The amount of Additional
Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Registrable Notes, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of
a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of
which is 360.
3. Registration Procedures
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In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers and the Guarantor shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Issuers and the Guarantor shall:
(a) Prepare and file with the SEC, prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section
2 or 3, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein, provided that, if (1) such filing is pursuant to Section 3, or (2)
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a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Issuers and the Guarantor
shall, if requested, furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement and each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (at least
5 business days
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prior to such filing). The Issuers and the Guarantor shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document, if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriter(s), if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement,
as the case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented
by any prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply with the provisions of
both the Securities Act and the Exchange Act, and the rules and regulations
of the SEC thereunder, applicable to them with respect to the disposition
of all securities covered by such Registration Statement as so amended or
in such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Issuers and the Guarantor shall be
deemed not to have used their reasonable best efforts to keep a
Registration Statement effective during the Applicable Period if any of
them voluntarily takes any action that would result in selling Holders of
the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless such action is
required by applicable law or unless the Issuers and the Guarantor comply
with this Agreement, including without limitation, the provisions of clause
5(c)(v) below.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section
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2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriter(s), if any, promptly (but in any event within two
business days), and confirm such notice in writing, (i) when a Prospectus
or any prospectus supplement or post-effective amendment thereto has been
filed, and, with respect to a Registration Statement or any post-effective
amendment thereto, when the same has become effective under the Securities
Act (including in such notice a written statement that any Holder may, upon
request, obtain, without charge, one conformed copy of such Registration
Statement or post-effective amendment thereto including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any preliminary Prospectus
or the initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes
by Participating Broker-Dealers the representations and warranties of the
Issuers and the Guarantor contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) below cease to be true
and correct, (iv) of the receipt by the Issuers and the Guarantor of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event or any information becoming known that makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in, or
amendments or supplements to, such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue
-17-
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue, statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
and (vi) of the Issuers' and the Guarantor's reasonable determination that
a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use their reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus
or suspending the qualification (or exemption from qualification) of any of
the Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use their reasonable best efforts to obtain the withdrawal of
any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter(s), if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriter(s), if any, or such Holders reasonably request to be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after
the Issuers and the Guarantor have received notification of the matters to
be incorporated in such Prospectus supplement or post-effective amendment.
-18-
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes
who so requests and to each such Participating Broker-Dealer who so
requests and to counsel and the managing underwriter(s), if any, without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes,
or each such Participating Broker-Dealer, as the case may be, their
counsel, and the managing underwriter or underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses (including each
form of preliminary Prospectus) and each amendment or supplement thereto
and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5,
the Issuers and the Guarantor hereby consent to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may
be, and the managing underwriter or underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the
-19-
Applicable Period, to use their reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification of (or exemption from
such registration or qualification), such Registrable Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably request in
writing, provided that where Exchange Notes held by Participating Broker-
--------
Dealers or Registrable Notes are offered other than through an underwritten
offering, the Issuers and the Guarantor agree to cause their counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h); keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Issuers and the
--------
Guarantor shall not be required to (A) qualify generally to do business in
any jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
reasonably request.
-20-
(j) Use their reasonable best efforts to cause the Registrable Notes
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 managing underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Issuers and the Guarantor
will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi), as promptly as reasonably practicable
prepare and (subject to Section 5(a)) file with the SEC, at the expense of
the Issuers and the Guarantor, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(l) Use their reasonable best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by
the Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement or the Exchange Notes, as the
case may be, or the managing underwriter or underwriters, if any.
-21-
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes or Exchange Notes, as the case may
be, in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Notes or Exchange Notes, as
the case may be.
(n) In connection with an underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter(s), if any, in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection, (i) to the extent possible, make such representations and
warranties to the managing underwriter or underwriters on behalf of any
underwriters, with respect to the business of the Issuers, the Guarantor
and their subsidiaries 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 of debt securities similar to the Notes, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Issuers and the Guarantor and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the managing underwriter or underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of debt
securities similar to the Notes and such other matters as may be reasonably
requested by the managing underwriter(s); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory
to the managing underwriter or underwriters from the independent certified
public accountants of the Issuers and the Guarantor (and, if necessary, any
other independent certified public accountants of any subsidiary of any of
the Issuers and the Guarantor or of any business acquired by the Issuers or
the Guarantor for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
managing underwriter or underwriters on
-22-
behalf of any underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings of debt securities similar to the
Notes and such other matters as may be reasonably requested by the managing
underwriter or underwriters; 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 7 hereof (or
such other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 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 any selling Holder
of such Registrable Notes being sold, or each such Participating Broker-
Dealer, as the case may be, the managing underwriter or underwriters
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be (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 Issuers, the Guarantor and their respective
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 Issuers, the
Guarantor and their respective subsidiaries to supply all information in
each case reasonably requested by any such Inspector in connection with
such Registration Statement. Records which the Issuers and the Guarantor
determine, in good faith, to be confidential and any Records which they
notify the Inspectors are confidential shall not be
-23-
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a material misstatement or material 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 Registrable
Notes and each such Participating Broker-Dealer or underwriter 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 Issuers and the
Guarantor or for any purpose other than in connection with such
Registration Statement unless and until such is made generally available to
the public. Each selling Holder of such Registrable 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 prompt notice to the Issuers and the Guarantor
and allow the Issuers and the Guarantor to undertake appropriate action to
prevent disclosure of the Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange
Registration Statement or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use their reasonable best efforts to cause such 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 such indenture to
be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its
-24-
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 45 days after the end
of any 12-month period (or 90 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 Registrable 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 Issuers and the Guarantor after the effective date of
a Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion or opinions of counsel to the Issuers and the Guarantor,
in a form customary for underwritten offerings of debt securities similar
to the Notes, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, and which includes an opinion that (i) the
Issuers and the Guarantor have duly authorized, executed and delivered the
Exchange Notes and Private Exchange Notes and the related indenture and
(ii) each of the Exchange Notes or the Private Exchange Notes, as the case
may be, and related indenture constitutes a legal, valid and binding
obligation of the Issuers and the Guarantor, enforceable against the
Issuers and the Guarantor in accordance with its respective terms (with
customary exceptions).
(s) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuers and the
Guarantor (or to such other Person as directed by the Issuers and the
Guarantor) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Issuers and the Guarantor shall mark, or
cause to be marked, on such Registrable Notes that such Registrable Notes
are being canceled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; and, in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
-25-
(t) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(u) Use their reasonable best efforts to take all other reasonable
steps necessary to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
The Issuers and the Guarantor may require each seller of Registrable
Notes or Participating Broker-Dealer as to which any registration is being
effected to furnish to the Issuers and the Guarantor such information regarding
such seller or Participating Broker-Dealer and the distribution of such
Registrable Notes or Exchange Notes to be sold by such Participating Broker-
Dealer, as the case may be, as the Issuers and the Guarantor may, from time to
time, reasonably request. The Issuers and the Guarantor may exclude from such
registration the Registrable Notes of any seller or Participating Broker-Dealer
who unreasonably fails to furnish such information within a reasonable time
after receiving such request. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Issuers and the Guarantor all
information required to be disclosed in order to make the information previously
furnished to the Issuers and the Guarantor by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers and the Guarantor of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it is
advised in writing (the "Advice") by the
-26-
Issuers and the Guarantor that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Issuers and the Guarantor shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
4. Registration Expenses
-- ---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers and the Guarantor shall be
borne by the Issuers and the Guarantor, whether or not the Exchange Offer
or a Shelf Registration is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with
Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes
for investment under the laws of such jurisdictions in the United States
(x) where the Holders of Registrable Notes are located, in the case of the
Exchange Notes, or (y) as provided in Section 5(h), in the case of
Registrable Notes or Exchange Notes to be sold by a Participating Broker-
Dealer during the Applicable Period)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Notes
or Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses if the printing of Prospectuses is
reasonably requested by the managing underwriter or underwriters, if any,
or, in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of
a majority in
-27-
aggregate principal amount of the Registrable Notes included in any
Registration Statement or of such Exchange Notes, as the case may be),
(iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and the Guarantor and fees and
disbursements of one special counsel for the sellers of Registrable Notes
(subject to the provisions of Section 6(b)), (v) fees and disbursements of
all independent certified public accountants referred to in Section
5(n)(iii) (including, without limitation, the expenses of any special audit
and "cold comfort" letters required by or incident to such performance, but
excluding fees and expenses of counsel to the underwriters (other than fees
and expenses set forth in clause (i) above) or the Holders), (vi) rating
agency fees, (vii) Securities Act liability insurance, if the Issuers and
the Guarantor desire such insurance, (viii) fees and expenses of the
Trustee, (ix) fees and expenses of all other Persons retained by the
Issuers and the Guarantor, (x) internal expenses of the Issuers and the
Guarantor (including, without limitation, all salaries and expenses of
officers and employees of the Issuers and the Guarantor performing legal or
accounting duties), (xi) the expense of any annual audit, (xii) the fees
and expenses incurred in connection with any listing of the securities to
be registered on any securities exchange, (xiii) the fees and disbursements
of underwriters, if any, customarily paid by issuers or sellers of
securities (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of the Registrable Notes
which discounts, commissions or taxes shall be paid by Holders or such
Registrable Notes) and (xiv) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the Issuers
and the Guarantor shall reimburse the Holders of the Registrable Notes
being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal
amount of the Registrable
-28-
Notes to be included in such Registration Statement and other reasonable
out-of-pocket expenses of the Holders of Registrable Notes incurred in
connection with the registration of the Registrable Notes. The Issuers and
the Guarantor shall not have any obligation to pay any underwriting fees,
discounts or commissions attributable to the sale of Registrable
Securities.
5. Indemnification
-- ---------------
(a) The Guarantor and each of the Issuers, jointly and severally,
agree to indemnify and hold harmless each Holder of Registrable Notes and
each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, the officers and directors of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and
other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (as amended or
supplemented if the Issuers and the Guarantor shall have furnished any
amendments or supplements thereto) or any preliminary Prospectus, or caused
by, arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers and the
Guarantor in writing by such Participant expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary
--------
Prospectus shall not inure to the benefit of any Participant (or to the
benefit of an officer or director of such Participant or any Person
controlling such Participant) from whom the Person asserting any such
losses, claims, damages or liabilities purchased
-29-
Registrable Notes or Exchange Notes if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary Prospectus is
eliminated or remedied in the related Prospectus (as amended or
supplemented if the Issuers and the Guarantor shall have furnished any
amendments or supplements thereto) and a copy of the related Prospectus (as
so amended or supplemented) shall have been furnished to such Participant
at or prior to the sale of such Registrable or Exchange Notes, as the case
may be, to such Person.
(b) Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless the Guarantor and each Issuer, their
directors and officers and each Person who controls any of the Issuers or
the Guarantor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Guarantor and each Issuer to each Participant, but only with
reference to information relating to such Participant furnished to the
Guarantor and each Issuer in writing by such Participant expressly for use
in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary Prospectus. The liability of any Participant
under this paragraph (b) shall in no event exceed the proceeds received by
such Participant from sales of Registrable Notes or Exchange Notes giving
rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either paragraph (a) or (b) of this Section 7, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain one counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person
and any others the Indemnifying Person may reasonably designate in such
proceeding and shall pay the reasonable fees and expenses incurred by such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but
-30-
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and such Indemnified Person
shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to any such Indemnifying Person. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate law firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Participants and such
control Persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Notes and
Exchange Notes sold by all such Participants and any such separate firm for
the Issuers, the Guarantor, their respective directors, their respective
officers and such control Persons of the Issuers and the Guarantor shall be
designated in writing by the Issuers and the Guarantor. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its prior written consent, but if settled with such consent or if
there be a final judgment for the plaintiff for which the Indemnified Person
is entitled to indemnification pursuant to this Agreement, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days
after receipt by such Indemnifying Person of the aforesaid request and
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(ii) such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be
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liable for any settlement effected without its consent pursuant to this
sentence if the Indemnifying Party is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities in such proportion as is appropriate
to reflect the relative fault of the Issuers and the Guarantor on the one
hand and the Participants on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
the Issuers and the Guarantor on the one hand and the Participants 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 Issuers and the Guarantor or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if the
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Participants were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no
event shall a Participant be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes exceeds the amount of any damages that
such Participant 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.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
6. Rules 144 and 144A
- -- ------------------
The Issuers and the Guarantor covenant that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner and,
if at any time the Issuers and the Guarantor are not required to file such
reports, they will, upon the request of any Holder of Registrable Notes, make
publicly available other information of a like nature so long as necessary to
permit sales pursuant to Rule 144 or Rule 144A. The Issuers and the Guarantor
further covenant that so long as any Registrable Notes remain outstanding to
make available to any Holder of Registrable Notes in connection with any sale
thereof, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Notes
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pursuant to (a) such Rule 144A, or (b) any similar rule or regulation hereafter
adopted by the SEC.
7. Underwritten Registrations
- -- --------------------------
If any of the Registrable Notes covered by any Shelf Registration are to
be sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Issuers and
the Guarantor.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Miscellaneous
- -- -------------
(a) Remedies. In the event of a breach by the Issuers, the
--- --------
Guarantor or their subsidiaries of any of their obligations under this
Agreement, other than the occurrence of an event which requires payment of
Additional Interest, each Holder of Registrable Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or, in the
case of the Initial Purchaser, in the Restructuring Agreement or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Issuers and the Guarantor agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by them of any of the provisions of this Agreement and hereby further
agree, jointly and severally, that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate.
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(b) Enforcement. The Trustee shall be authorized to enforce the
--- -----------
provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. The Issuers and the Guarantor
--- --------------------------
have not, as of the date hereof, and the Issuers and the Guarantor shall
not, after the date of this Agreement, enter into any agreement with
respect to any of their securities that is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof. The Issuers and the Guarantor have
not entered and will not enter into any agreement with respect to any of
their securities which will grant to any Person piggy-back rights with
respect to a Registration Statement required to be filed under this
Agreement.
(d) Adjustments Affecting Registrable Notes. The Issuers and
--- ---------------------------------------
the Guarantor shall not, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable
Notes in a registration undertaken pursuant to this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement,
--- ----------------------
including the 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, unless the Issuers and the Guarantor have obtained
the written consent of Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Notes.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold
pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders
of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by such
Holders pursuant to such Registration Statement, provided that the
--------
provisions of this sentence may not be amended, modified or supplemented
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except in accordance with the provisions of the immediately preceding
sentence.
(f) Notices. All notices and other communications (including
--- -------
without limitation any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating Broker-
Dealer, at the most current address given by the Trustee to the Issuers and
the Guarantor; and
(ii) if to the Issuers and the Guarantor, c/o Insight Communications
Company, L.P., 126 E. 56th Street, New York, New York 10022, Attention: Kim
D. Kelly, with a copy to Cooperman Levitt Winikoff Lester & Newman, P.C.,
800 Third Avenue, New York, NY 10027 Attention: Elliot Brecher, Esq. and to
Coaxial Communications, Inc., 5111 Ocean Boulevard, Suite C, Sarasota,
Florida 34242, Attention: Dennis McGillicuddy, with a copy to Dow, Lohnes &
Albertson, PLLC, 1200 New Hampshire Avenue, N.W., Suite 800, Washington,
D.C. 20036-6802, Attention: Timothy J. Kelley, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) when delivered by hand, if personally delivered; (ii) five business
days after being deposited in the mail, postage prepaid, if mailed; (iii) one
business day after being timely delivered to a next-day air courier; and (iv)
when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(g) 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 Registrable Notes.
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(h) 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.
(i) Headings. The headings in this Agreement are for
--- --------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
--- -------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
--- ------------
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable best efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction.
(l) Entire Agreement. This Agreement, together with the
--- ----------------
Restructuring Agreement and the Indenture, is intended by the parties as a
final expression of their agreement, and is 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 and therein.
(m) Notes Held by the Issuers, the Guarantor or their
--- -------------------------------------------------
Affiliates. Whenever the consent or approval of Holders of a specified
----------
percentage of Registrable Notes is required hereunder, Registrable Notes
held by the Issuers, the Guarantor or their affiliates (as such term is
defined
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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.
IN WITNESS WHEREOF, the parties have executed this Senior Notes
Registration Rights Agreement as of the date first written above.
COAXIAL COMMUNICATIONS OF CENTRAL
OHIO, INC.
By: /s/ Dennis J. McGillicuddy
Name: Dennis J. McGillicuddy
Title: Chairman
PHOENIX ASSOCIATES
By: PHOENIX DJM LLC
By: /s/ Dennis J. McGillicuddy
Name: Dennis J. McGillicuddy
Title: Its Sole Member
INSIGHT COMMUNICATIONS OF CENTRAL
OHIO, LLC
By: /s/ Kim D. Kelly
Name: Kim D. Kelly
Title: Executive Vice
President
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
CIBC OPPENHEIMER CORP.
By: /s/
Name:
Title: