Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
Dated as of January 19, 2001
among
TRITON PCS, INC.,
THE GUARANTORS NAMED HEREIN
and
CHASE SECURITIES INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
▇▇▇▇▇▇ BROTHERS INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
ABN AMRO INCORPORATED,
CREDIT LYONNAIS SECURITIES (USA) INC.,
PNC CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.,
SCOTIA CAPITAL MARKETS (USA) INC.,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
TD SECURITIES (USA) INC.
and
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of January 19, 2001, by and among TRITON PCS, INC., a corporation formed
under the laws of the State of Delaware (the "Company"), the subsidiaries of the
Company listed on the signature pages hereof (the "Guarantors" and, together
with the Company, the "Issuers") and CHASE SECURITIES INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED, ▇▇▇▇▇▇ BROTHERS INC., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, ABN AMRO INCORPORATED, CREDIT LYONNAIS SECURITIES (USA) INC., PNC
CAPITAL MARKETS, INC., SCOTIA CAPITAL MARKETS (USA) INC., SUNTRUST EQUITABLE
SECURITIES CORPORATION, TD SECURITIES (USA) INC. and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SECURITIES, INC. (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 16, 2001, among the Company, the Guarantors and
the Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Company to the Initial Purchasers of $350,000,000 aggregate principal amount of
its 9-3/8% Senior Subordinated Notes due 2011 (the "Notes") and the issuance by
the Guarantors to the Initial Purchasers of guarantees (the "Guarantees" and
together with the Notes, the "Securities"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers (including any Initial Purchaser in its capacity as a
Market Maker) and their direct and indirect transferees. The execution and
delivery of this Agreement is a condition to the Initial Purchasers' obligation
to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4.
Advice: See Section 5.
Applicable Period: See Section 2(b).
Blocking Notice: Written notice from the Company that (i) an
amendment or supplement to any Registration Statement (including an amendment or
supplement required by Section 11 hereof), or a distribution of Registrable
Securities under a Shelf Registration Statement, as applicable, would require
the public disclosure of material non-public information concerning any
transaction or negotiation involving the Company or any of its affiliates that,
in the Company's judgment, exercised reasonably and in good faith, would
materially interfere with such transaction or negotiations, or (ii) such
amendment or supplement would otherwise require premature disclosure of
non-public information that, in the Company's judgment, exercised reasonably and
in good faith, would adversely affect or otherwise be detrimental to the
Company.
Blocking Period: The period of time beginning with the date of
receipt by the Holders of a Blocking Notice and ending on the earliest to occur
of (x) 30 days from the date of receipt by the Holders of a Blocking Notice, (y)
the date upon which the transactions or negotiations that are the subject of the
Blocking
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Notice have been publicly disclosed or terminated and (z) the receipt by the
Holders of a Blocking Termination Notice.
Blocking Termination Notice: See the last paragraph of
Section 5 hereof.
Closing Date: The "Closing Date" as defined in the Purchase
Agreement.
Company: See the introductory paragraph to this Agreement.
Consummation Date: The 180th day after the Closing Date.
Effectiveness Date: The 150th day after the Closing Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
Filing Date: The 90th day after the Closing Date.
Guarantors: See the introductory paragraph to this Agreement.
Holder: Any record holder of Registrable Securities and each
Market Maker holding Securities, Exchange Securities or Private Exchange
Securities from time to time.
Indemnified Person: See Section 7.
Indemnifying Person: See Section 7.
Indenture: The Indenture, dated as of January 19, 2001, among
the Company, the Guarantors and The Bank of New York, as trustee, pursuant to
which the Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(p).
Issue Date: January 19, 2001, the original issue date of the
Securities.
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Issuers: See the introductory paragraph to this Agreement.
Market Makers: See Section 11(a).
Market Making: See Section 11(j).
Market Maker Termination Notice: See Section 11(j).
NASD: See Section 5(t).
Notes: See the preamble to this Agreement.
Participant: See Section 7.
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, 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 Securities, Exchange
Securities or Private Exchange Securities 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(p).
Registrable Securities: The Securities, upon original issuance
thereof and at all times subsequent thereto, each Exchange Security as to which
Section 2(c)(1)(i) hereof is applicable upon original issuance and at all times
subsequent thereto and, if issued, the Private Exchange Securities, until, in
the case of any such Securities, Exchange Securities or Private Exchange
Securities, as the case may be, (i) a Registration Statement (other than, with
respect to any Exchange Security as to which Section 2(c)(1)(i) hereof is
applicable, the Exchange Registration Statement) covering such Securities,
Exchange Securities or Private Exchange Securities has been declared effective
by the SEC and such Securities, Exchange Securities or Private Exchange
Securities, as the case may be, have been disposed of in accordance with such
effective Registration Statement, (ii) such Securities, Exchange Securities or
Private Exchange Securities, as the case may be, can be sold in compliance with
Rule 144(k) or are otherwise sold pursuant to Rule 144, or (iii) such
Securities, Exchange Securities or Private Exchange Securities, as the case may
be, cease to be outstanding.
Registration Statement: Any registration statement of the
Issuers, and the Guarantors, including, but not limited to, the Exchange
Registration Statement and any registration statement required pursuant to
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Article 11 hereof, that covers any of the Securities, Exchange Securities or
Private Exchange Securities 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.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule 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 Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the preamble to this Agreement.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee as defined in the Indenture and, if
existent, the trustee under any indenture governing the Exchange Securities and
Private Exchange Securities (if any).
Underwritten registration or underwritten offering: A
registration in connection with which Registrable Securities are sold to an
underwriter for reoffering to the public pursuant to an effective Registration
Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable law and permitted by an
applicable interpretation of the Staff of the SEC, the Issuers agree to
file with the SEC as soon as practicable after the Closing Date, but in no
event later than the Filing Date, an offer to exchange (the "Exchange
Offer") any and all of the Registrable Securities for a like aggregate
principal amount of debt securities of the Company which are identical in
all material respects to the Notes and guaranteed by the Guarantors with
terms identical in all material respects to the Guarantees (the "Exchange
Securities") (and which are entitled to the benefits of the Indenture (with
only such changes as are necessary to comply with
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any requirements of the SEC to effect or maintain the qualification of the
Indenture under the TIA) and which will be qualified under the TIA), except
that the Exchange Securities shall have been registered pursuant to an
effective Registration Statement under the Securities Act and shall contain
no restrictive legend thereon. The Issuers agree to use their commercially
reasonable efforts to keep the Exchange Offer open for at least 20 business
days (or longer if required by applicable law) after the date notice of the
Exchange Offer is mailed to Holders and to consummate the Exchange Offer on
or prior to the Consummation Date. 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. If after such Exchange
Registration Statement is initially declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Securities 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 until the offering of the Registrable Securities
pursuant to such Exchange Registration Statement may legally resume. Each
Holder who participates in the Exchange Offer will be deemed to represent
that any Exchange Securities 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
Securities in violation of the provisions of the Securities Act, and that
such Holder is not an affiliate of the Company within the meaning of Rule
501(b) of Regulation D under the Securities Act and such Holder has full
power and authority to exchange the Registrable Securities in exchange for
the Exchange Securities. 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 Registrable
Securities that are Private Exchange Securities and Exchange Securities
held by Participating Broker-Dealers and any Securities held by a Market
Maker, and the Issuers shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities, Securities
held by a Market Maker in accordance with Section 11 hereof, and Exchange
Securities as to which clause (c)(1)(i) hereof applies) pursuant to Section
3 of this Agreement. No securities other than the Exchange Securities shall
be included in the Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange
Registration Statement one or more section(s) reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the Staff of the SEC (which are
available to the Issuers) with respect to the potential "underwriter"
status of any broker-dealer that is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities 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 Purchasers, represent the prevailing views of the Staff of
the SEC, subject in the case of unpublished positions or policies of the
Staff of the SEC, to the reasonable concurrence of counsel to the Company.
Such section(s) 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 Securities.
The Issuers shall use their commercially reasonable 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
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Securities,provided 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, prior to consummation of the Exchange Offer, an Initial
Purchaser holds any Securities acquired by them and having the status of an
unsold allotment in the initial distribution or if any Market Maker holds any
Securities (whether acquired in market making activities or having the status of
an unsold allotment), the Issuers shall upon the request of such Initial
Purchaser, simultaneously with the delivery of the applicable Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser,
in exchange (the "Private Exchange") for the Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company that are
identical in all material respects to the Exchange Securities (the "Private
Exchange Securities") (and which are issued pursuant to the Indenture) except
for the placement of a restrictive legend on such Private Exchange Securities.
If possible, the Private Exchange Securities shall bear the same CUSIP number as
the Exchange Securities. Interest on the Exchange Securities and Private
Exchange Securities will accrue from the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or, if no
interest has been paid on the Notes, from the Issue Date.
(c) If (1) prior to the consummation of the Exchange Offer, the Company
reasonably determines in good faith or Holders of at least a majority in
aggregate principal amount of the Registrable Securities notify the Company
that they have reasonably determined in good faith that (i) in the opinion
of counsel, the Exchange Securities would not, upon receipt, be tradable by
such Holders who are not affiliates of the Company without restriction
under the Securities Act and without restrictions under applicable blue sky
or state securities laws or (ii) in the opinion of counsel, the SEC is
unlikely to permit the consummation of the Exchange Offer and/or (2)
subsequent to the consummation of the Private Exchange, holders of at least
a majority in aggregate principal amount of the Private Exchange Securities
so request with respect to the Private Exchange Securities and/or (3) the
Exchange Offer is commenced and not consummated prior to the 45th day
following the Consummation Date for any reason, then the Company shall
promptly deliver to the Holders and the Trustee notice thereof (the "Shelf
Notice") and shall thereafter file an Initial Shelf Registration as set
forth in Section 3 (which only in the circumstances contemplated by clause
(2) of this sentence will relate solely to the Private Exchange Securities)
pursuant to Section 3. The parties hereto agree that, following the
delivery of a Shelf Notice to the Holders of Registrable Securities (only
in the circumstances contemplated by clauses (1) and/or (3) of the
preceding sentence), the Issuers shall not have any further obligation to
conduct the Exchange Offer or the Private Exchange under this Section 2.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Initial Shelf Registration. The Issuers shall as promptly as reasonably
practicable 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 Securities (the "Initial Shelf Registration"). If the
Issuers shall have not yet filed an Exchange Offer, the Issuers shall use
their commercially reasonable efforts to file with the SEC the Initial
Shelf Registration on or prior to the Filing Date. Otherwise, the Issuers
shall use their commercially reasonable efforts to file with the SEC the
Initial Shelf Registration within 45 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 Securities for
resale by such holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable
Securities to
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be included in the Initial Shelf Registration or any Subsequent Shelf
Registration. The Issuers shall use their commercially reasonable efforts
to cause the Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the 60th day after the filing thereof with
the SEC and to use commercially reasonable efforts to keep the Initial
Shelf Registration continuously effective under the Securities Act until
the date on which the Securities are no longer "restricted securities"
(within the meaning of Rule 144 under the Act) (subject to extension
pursuant to the last paragraph of Section 5 hereof) (the "Effectiveness
Period"), or such shorter period ending when (i) all Registrable Securities
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 Securities
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration 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
of the securities registered thereunder), the Issuers shall use their
commercially reasonable 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
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Issuers shall use their commercially reasonable
efforts to (i) cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and (ii) 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 term
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall 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 reasonably requested
by any underwriter of such Registrable Securities.
(d) Provision by Holders of Certain Information in Connection with the Self
Registration Statement. No Holder of Registrable Securities may include any
of its Registrable Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Registrable Securities shall be
entitled to Additional Interest pursuant to Section 4 hereof unless and
until such Holder shall have provided all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading and not
to omit any material fact.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Issuers 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
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Issuers, jointly and severally, agree to pay, as liquidated damages,
additional interest on the Registrable Securities ("Additional Interest")
under the circumstances and to the extent set forth below (each of which
shall be given independent effect and shall not be duplicative except as
otherwise provided below):
(i) if neither the Exchange Registration Statement nor the Initial Shelf
Registration has been filed on or prior to the Filing Date, Additional
Interest shall accrue on the Registrable Securities over and above the
stated interest at a rate of .25% per annum for the first 90 days
immediately following the Filing Date, such Additional Interest rate
increasing by an additional .25% per annum at the beginning of each
subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the Initial Shelf
Registration is declared effective by the SEC on or prior to the
Effectiveness Date, Additional Interest shall accrue on the Registrable
Securities included or which should have been included in such Registration
Statement over and above the stated interest at a rate of .25% per annum
for the first 90 days immediately following the day after the Effectiveness
Date, such Additional Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period; and
(iii)if (A) the Company has not exchanged Exchange Securities for all Securities
validly tendered in accordance with the terms of the Exchange Offer on or
prior to the Consummation 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 applicable, the Shelf Registration has been
declared effective and such Shelf Registration ceases to be effective at
any time during the Effectiveness Period, then Additional Interest shall
accrue on the Registrable Securities (over and above the stated interest
rate otherwise payable on the Registrable Securities) at a rate of .25% per
annum for the first 90 days commencing on the (x) 151st day after the Issue
Date, in the case of (A) above, or (y) the day the Exchange Registration
Statement ceases to be effective in the case of (B) above, or (z) the day
such Shelf Registration ceases to be effective in the case of (C) above,
such Additional Interest rate increasing by an additional .25% per annum at
the beginning of each such subsequent 90-day period;
provided, that the Additional Interest rate on the Registrable Securities may
not exceed at any one time in the aggregate 1.0% per annum; and provided,
further, that (1) upon the filing of the Exchange Registration Statement or a
Shelf Registration as required hereunder (in the case of clause (i) of this
Section 4), (2) upon the effectiveness of the Exchange Registration Statement or
the Shelf Registration as required hereunder (in the case of clause (ii) of this
Section 4), or (3) upon the exchange of Exchange Securities for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the Exchange Registration Statement which had ceased to remain
effective (in the case of (iii)(B) of this Section 4), or upon the effectiveness
of the Shelf Registration which had ceased to remain effective (in the case of
(iii)(C) of this Section 4), Additional Interest on the Registrable Securities
as a result of such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue. It is understood and agreed that, notwithstanding any
provision to the contrary, so long as any Registrable Security is then covered
by an effective Shelf Registration Statement (regardless of whether a Blocking
Period is in effect), no Additional Interest shall accrue on such Registrable
Security.
(b) 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"). The Issuers shall pay
the Additional Interest due on the Registrable Securities by depositing
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with the Trustee, in trust, for the benefit of the Holders thereof, on or
before the applicable semi-annual interest payment date, immediately
available funds in sums sufficient to pay the Additional Interest then due
to Holders of Registrable Securities. The Additional Interest amount due
shall be payable on each such date to the record Holder of Registrable
Securities on January 15 or July 15, as the case may be, immediately
preceding such semi-annual interest payment date (or the calendar date
which would be a semi-annual interest payment date if cash interest were
then payable on the Registrable Securities). The amount of Additional
Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the affected Registrable
Securities of such Holders, 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 including the first day but excluding the last day of such
period), and, the denominator of which is 360. Each obligation to pay
Additional Interest shall be deemed to accrue immediately following the
occurrence of the applicable Event Date. The parties hereto agree that the
Additional Interest provided for in this Section 4 constitutes a reasonable
estimate of the damages that may be incurred by Holders of Registrable
Securities by reason of the failure of a Shelf Registration or Exchange
Offer to be filed or declared effective, an Exchange Offer to be
consummated or a Shelf Registration to remain effective, as the case may
be, in accordance with this Section 4.
5. Registration Procedures
In connection with the registration of any Registrable
Securities pursuant to Sections 2 or 3 hereof and the sale of Exchange
Securities from time to time by the Market Makers, the Issuers shall effect such
registrations to permit the sale of Registrable Securities, and in accordance
with Section 11 the sale by the Market Makers of Exchange Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Issuers shall:
(a) Use their commercially reasonable efforts to prepare and file with the SEC,
as soon as practicable after the date hereof but in any event prior to the
Filing Date in the case of the Exchange Registration Statement and the 45th
day following the Consummation Date in the case of the Shelf Registration
Statement, a Registration Statement or Registration Statements as
prescribed by Section 2 or 3, and to use their commercially reasonable
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) 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 Securities during the Applicable Period, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall upon written request furnish to and
afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be The
Depository Trust Company ("DTC") and each such Participating Broker-Dealer,
as --- the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, 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.
(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 required Prospectus
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supplement, 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 the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it 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 shall not be
deemed to have used their commercially reasonable efforts to keep a
Registration Statement effective during the Applicable Period if either of
them voluntarily takes any action that would result in selling Holders of
the Registrable Securities covered thereby or Participating Broker-Dealers
seeking to sell Exchange Securities not being able to sell such Registrable
Securities or such Exchange Securities during that period unless such
action is required by applicable law or unless the Issuers comply with this
Agreement, including without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5.
(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 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, notify the selling Holders of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel and the managing underwriters, if any, who have provided the
Issuers with their names and addresses 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 has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, 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 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) of the receipt
by the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Securities or the Exchange Securities 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, (iv)
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 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 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 the light of the circumstances under which they were made, not
misleading, and (v) of the Company'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 Securities during
the Applicable Period, use their commercially reasonable 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
-11-
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use their commercially reasonable 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 reasonably
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Securities being
sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the managing underwriters, if any, or such Holders or counsel reasonably
request to be included therein, or (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to
be incorporated in such prospectus supplement or post-effective amendment;
provided that the Company shall not be required to take any action pursuant
to this Section 5(c) that would, in the reasonable opinion of counsel for
the Company, violate applicable law.
(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 Securities during
the Applicable Period, furnish to each selling Holder of Registrable
Securities and to each such Participating Broker-Dealer who so requests and
to counsel and each managing underwriter, if any, without charge, one
conformed copy of the Registration Statement or 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 Securities during
the Applicable Period, deliver to each selling Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel, and the underwriters, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus, if requested) and each amendment or supplement thereto
(provided the manner of such use complies with all applicable federal
securities laws, the rules and regulations of the SEC and applicable state
securities "Blue Sky" laws and subject to the provisions of this Agreement)
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 hereby consent to the use of such Prospectus and each amendment
or supplement thereto by each of the selling holders of Registrable
Securities or each such Participating Broker-Dealer, as the case may be,
and the underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Securities covered by or the
sale by Participating Broker-Dealers of the Exchange Securities pursuant to
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, to use their commercially reasonable efforts to
register or qualify, and to cooperate with the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions
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within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriters reasonably request in writing,
provided that where Exchange Securities held by Participating
Broker-Dealers or Registrable Securities are offered other than through an
underwritten offering, the Issuers 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 reasonable acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Securities held by
Participating Broker-Dealers or the Registrable Securities covered by the
applicable Registration Statement, provided that neither of the Issuers
shall 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, reasonably
cooperate with the selling Holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with DTC; and enable such Registrable Securities
to be registered in such names as the managing underwriter or underwriters,
if any, or Holders may request at least two business days prior to any sale
of Registrable Securities.
(j) Use their commercially reasonable efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other United States governmental agencies or authorities
of the United States as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities, except as may be required solely as a consequence
of the nature of such selling Holder's business, in which case the Issuers
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 Securities during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(iv) or 5(c)(v) above, as promptly as practicable prepare and
(subject to Section 5(a) above) file with the SEC, solely at the expense of
the Issuers, 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 Securities being sold thereunder or to the purchasers of
the Exchange Securities 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 the light
of the circumstances under which they were made, not misleading.
(l) In connection with an underwritten public offering, use their commercially
reasonable efforts to cause the Registrable Securities covered by a
Registration Statement or the Exchange Securities, as the case may be, to
be rated, or, if previously rated, updated, with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable
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Securities covered by such Registration Statement or the Exchange
Securities, as the case may be, or the managing underwriters, if any.
(m) Prior to the consummation of the offering pursuant to the first
Registration Statement relating to the Registrable Securities, (i) provide
the Trustee with printed certificates for the Registrable Securities in a
form eligible for deposit with DTC and (ii) provide a CUSIP number for the
Registrable Securities.
(n) Use their reasonable best efforts to cause all Registrable Securities
covered by such Registration Statement or the Exchange Securities, as the
case may be, to be listed on each securities exchange, if any, on which
similar securities issued by either of the Issuers are then listed.
(o) In connection with an underwritten offering of Registrable Securities
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings and take all such other actions as
are reasonably requested by the managing underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Securities, and in such connection, (i) make such representations and
warranties to the underwriters, with respect to the business of the Company
and its subsidiaries, if any, 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
reasonably requested; (ii) obtain an opinion of counsel to the Issuers and
updates thereof in form and substance reasonably satisfactory to the
managing underwriters (if any), addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by underwriters;
(iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters 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 each of the 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 and such other matters as may be reasonably
requested by 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 Securities covered by such Registration
Statement and the managing 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.
(p) 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 Securities during
the Applicable Period, make available for inspection by any selling Holder
of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Securities, 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, or underwriter
(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, if any (collectively, the "Records"), as shall be reasonably
necessary to enable
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them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries,
if any to supply all information in each case reasonably requested by any
such Inspector in connection with such Registration Statement, as shall be
reasonably necessary to enable the Inspectors to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Initial Purchasers and such selling
Holders by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 6
hereof; provided, further, that Records designated, in good faith, by the
Company as confidential at the time of delivery shall be kept confidential
by the Inspectors, unless (i) the disclosure of such Records is necessary
to avoid or correct a 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 Registrable Securities 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 Issuers unless and until such is made generally available
to the public. Each selling Holder of such Registrable Securities 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.
(q) Provide an indenture trustee for the Registrable Securities or the Exchange
Securities, 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 Offer or
the first Registration Statement relating to the Registrable Securities;
and in connection therewith, cooperate with the trustee under any such
indenture and the holders of the Registrable Securities, 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 commercially reasonable 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.
(r) Comply in all material respects with all applicable rules and regulations
of the SEC and make generally available to their securityholders earning
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 90 days after the end of any 12-month period
(i) commencing at the end of any fiscal quarter in which Registrable
Securities 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 Shelf Registration Statement, which
statements shall cover said 12-month periods.
(s) If an Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the
Company shall ▇▇▇▇, or caused to be marked, on such Registrable Securities
that such Registrable Securities are being cancelled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be;
in no event shall such Registrable Securities be marked as paid or
otherwise satisfied.
-15-
(t) Reasonably cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities 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 commercially reasonable efforts to take all other steps necessary
to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
(v) Upon consummation of an Exchange Offer or a Private Exchange, obtain an
opinion of counsel to the Company and the Guarantor, in a form customary
for underwritten offerings of debt securities similar to the Securities,
addressed to the Trustee solely for the benefit of the Trustee, and not for
the benefit of Holders of Registrable Securities participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) each of the Company and the Guarantors has
duly authorized, executed and delivered the Exchange Securities and Private
Exchange Securities and the related indenture and (ii) each of the Exchange
Securities or the Private Exchange Securities, as the case may be, and
related indenture constitute a legal, valid and binding obligation of each
of the Company and the Guarantors, enforceable against each of the Company
and the Guarantors in accordance with its respective terms (with customary
exceptions).
The Issuers may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Securities 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 is deemed to agree to furnish promptly
to the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
Each Holder of Registrable Securities, each Market Maker
holding Exchange Securities, and each Participating Broker-Dealer agrees by
acquisition of such Securities to be sold by such Holder, Participating
Broker-Dealer or Market Maker, as the case may be, that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v), such Holder will forthwith
discontinue disposition of Securities or Exchange Securities covered by any such
Registration Statement or Prospectus or Exchange Securities to be sold by such
Participating Broker-Dealer, as the case may be, until such Holder'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 Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company 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 Securities covered by such Registration Statement or Exchange
Securities to be sold by such 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. Each Holder of Registrable
Securities, each Participating Broker-Dealer and each Market Maker, further
agrees, by acquisition of such Securities, Registrable Securities or Exchange
Securities to be sold by such Holder, Participating Broker-Dealer or
Market-Maker, as the case may be, that upon receipt of a Blocking Notice from
the Company, such Holder, Participating Broker-Dealer or Market Maker will
forthwith discontinue disposition of such Securities, Registrable Securities, or
Exchange Securities, as the case may be, during the Blocking Period. In no event
may a
-16-
Blocking Notice be delivered prior to the consummation of the Exchange Offer
and, thereafter, only one Blocking Notice may be delivered pursuant to this
Agreement during any period of 180 consecutive days. The Company shall promptly
send each Holder, Participating Broker-Dealer or Market Maker, as applicable,
written notice (a "Blocking Termination Notice"), at the earliest possible time
that they determine, in good faith that, (x) the transaction or negotiations
that are subject to such Blocking Notice have been publicly disclosed, (y) such
non-public information has been publicly disclosed, or (z) counsel to the
Company has determined that such disclosure is not required due to subsequent
events.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers shall be borne by the Issuers, jointly and
severally, 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 Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions in the United States (x)
where the holders of Registrable Securities are located, in the case of the
Exchange Securities, or (y) as provided in Section 5(h), in the case of
Registrable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) reasonable printing
expenses (including, without limitation, expenses of printing certificates
for Registrable Securities or Exchange Securities in a form eligible for
deposit with DTC and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or, in
respect of Registrable Securities or Exchange Securities to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of
a majority in aggregate principal amount of the Registrable Securities
included in any Registration Statement or of such Exchange Securities, as
the case may be), (iii) messenger, telephone and delivery expenses incurred
by the Issuers, (iv) reasonable fees and disbursements of counsel for the
Issuers and fees and disbursements of special counsel for the sellers of
Registrable Securities (subject to the provisions of Section 6(b)), (v)
reasonable fees and disbursements of all independent certified public
accountants referred to in Section 5(o)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees,
(vii) Securities Act liability insurance, if the Issuers desire such
insurance, (viii) reasonable fees and expenses of all other Persons
retained by any of the Issuers, (ix) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (x) the
expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any
securities exchange, if applicable, (xii) the reasonable 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, (xiii)
reasonable fees and expenses of the Trustee (including reasonable fees and
expenses of counsel to the Trustee) and (ix) as provided in Section 11.
(b) In connection with any Shelf Registration hereunder, the Issuers shall
reimburse the Holders of the Registrable Securities being registered in
such registration for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of a majority in aggregate
principal amount of the Registrable Securities to be included in such
Registration Statement. Such Holders shall
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be responsible for all reasonable out-of-pocket expenses of the Holders of
Registrable Securities incurred in connection with the registration of the
Registrable Securities.
7. Indemnification
The Issuers, jointly and severally, agree to indemnify and
hold harmless (i) each Holder of Registrable Securities, (ii) each Participating
Broker-Dealer selling Exchange Securities during the Applicable Period, (iii)
each Market Maker, and the officers and directors of each such person included
in the immediately preceding clauses (i), (ii), and (iii), 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 legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Issuers shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages 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 Company
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 any person controlling
such Participant) from whom the person asserting any such losses, claims,
damages or liabilities purchased Registrable Securities or Exchange Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus is completely remedied in the related
Prospectus (as amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) and a copy of the related Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the sale of such Registrable Securities or Exchange Securities, as the
case may be, to such person.
Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless the Issuers, their directors, their
officers and each person who controls the Issuers 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 Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the Company
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 shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Securities giving rise to such obligations.
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 of the
two preceding paragraphs, 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 counsel satisfactory to the Indemnified Person
to represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses actually
incurred by such counsel related to such proceeding, provided that the failure
to so notify the Indemnifying Person shall not relieve it of any obligation or
liability which it may have hereunder or otherwise (unless and only to the
extent that such failure directly results in the loss or compromise of any
material rights or defenses). In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
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Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel 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 representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. 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 firm
(in addition to any appropriate 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 Securities sold by all such Participants and any such separate
firm for the Issuers, their directors, their officers and such control persons
of the Issuers shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff, 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 in writing an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses
actually 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 45 days after receipt by such Indemnifying
Person of the aforesaid written request and (ii) such Indemnifying Person shall
not have reimbursed the Indemnified Person for all reasonable fees and expenses
of such counsel in accordance with such request prior to the date of such
settlement. 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.
If the Indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, 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 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 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 or by
the Participants and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties shall 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 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 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 Securities
exceeds the amount of any damages that such Participant has otherwise been
-19-
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The 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.
8. Rule 144 and Rule 144A
Each of the Issuers shall use their commercially reasonable
efforts to file the reports required to be filed by it 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 are not required to file such
reports, they shall, upon the request of any Holder of Registrable Securities,
make publicly available other information so long as necessary to permit sales
pursuant to Rule 144 and Rule 144A under the Securities Act. The Issuers further
covenant to take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Securities 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 Securities included in such offering and reasonably acceptable to
the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Issuers of any of their
obligations under this Agreement, each Holder of Registrable Securities and
each Market Maker, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial
Purchasers, in the Purchase Agreement or granted by law, including recovery
of damages, will be entitled to specific performance of its rights under
this Agreement. The Issuers 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 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.
(b) No Inconsistent Agreements. The Issuers have not, as of the date hereof,
entered and 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 Securities or the Market
-20-
Makers in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting Registrable Securities. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the
Holders of Registrable Securities or the Market Makers to include
Registrable Securities or Exchange Securities in a registration undertaken
pursuant to this Agreement.
(d) 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 Company has obtained the written consent of Holders of at
least a majority of the then outstanding aggregate principal amount of
Registrable Securities (and, in the case of Section 11, each Market Maker).
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 Securities or of the Market Makers 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 may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement, (and, in the case of
Section 11, each Market Maker), provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(e) 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, at the most current address given by the Trustee to the
Company;
(ii) if to the Market Makers, to Chase Securities Inc. at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, with a copy to Chase Securities
Inc., Legal Department, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (fax: (212)
270-7487) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇; and
(iii) if to the Issuers, at Triton PCS, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive
Officer; with copies to Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; one business day after being timely delivered to a next-day air
courier; and when receipt is acknowledged by the addressee, if
telecopied.
-21-
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.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities; provided that, with respect
to the indemnity and contribution agreements in Section 7, each Holder of
Registrable Securities subsequent to the Initial Purchasers shall be bound
by the terms thereof if such Holder elects to include Registrable
Securities in a Shelf Registration; provided that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assignee holds
Registrable Securities or is a successor or assignee of a Market Maker.
(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, 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.
(j) 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 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. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Entire Agreement. This Agreement 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.
(l) Securities Held by the Company or Its Affiliates. Whenever the consent or
approval of holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
other than the Market Makers shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
-22-
(m) Subsidiary Guarantor a Party. Immediately upon the designation of any
subsidiary of the Company as a Guarantor (as defined in the Indenture),
the Company shall cause such Guarantor to guarantee the obligations of
the Company hereunder (including, without limitation, the obligation to
pay Additional Interest, if any, pursuant to the terms of Section 4
hereof), by executing and delivering to the Initial Purchasers an
appropriate amendment to this Agreement.
11. Additional Agreements
(a) Except during a Blocking Period, the Company will, for the sole benefit of
Chase Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ABN AMRO
Incorporated, Credit Lyonnais Securities (USA) Inc., PNC Capital Markets,
Inc., Scotia Capital Markets (USA) Inc., SunTrust Equitable Securities
Corporation, TD Securities (USA) Inc. and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities,
Inc. (each a "Market Maker" and together the "Market Makers"), for so long
as (i) any of the Securities are outstanding and (ii) the Market Makers or
any of their Affiliates (as defined in the rules and regulations of the SEC
under the Securities Act) would be, in the opinion of counsel for either of
the Market Makers, required to deliver a Prospectus in connection with
their market making activities as they relate to the Securities, the
Exchange Securities or the Private Exchange Securities:
(i) (A) On the date that the Exchange Offer Registration Statement is filed
with the SEC, file a Registration Statement (which may be the Exchange
Offer Registration Statement or the Shelf Registration Statement if
permitted by the rules and regulations of the SEC) covering sales of the
Securities, Exchange Securities or Private Exchange Securities by the
Market Makers, use its reasonable best efforts to cause such Registration
Statement to be declared effective by the SEC on or prior to the
consummation of the Exchange Offer and periodically amend such Registration
Statement so that the information contained in the Registration Statement
complies with the requirements of Section 10(a) under the Securities Act;
(B) if requested in writing by any Market Maker, within 45 days following
the end of the Company's most recent fiscal quarter, file a supplement to
the Prospectus which sets forth the financial results of the Company for
the previous quarter; (C) amend the Registration Statement or supplement
the Prospectus when necessary to reflect any material changes in the
information provided therein; and (D) amend the Registration Statement when
required to do so in order to comply with Section 10(a)(3) of the
Securities Act; provided that (1) prior to filing any post-effective
amendment to the Registration Statement or any supplement to the
Prospectus, the Company will furnish to each Market Maker that is required
to deliver a Prospectus in connection with their market making activities,
copies of all such documents proposed to be filed, which documents will be
subject to the reasonable review of each Market Maker and its counsel, (2)
the Company will not file any post-effective amendment to the Registration
Statement or any supplement to the Prospectus to which each Market Maker
and its counsel shall reasonably object in writing within three business
days of receipt and (3) the Company will provide each Market Maker and its
counsel with the number of copies of each amendment or supplement filed as
the Market Makers shall reasonably request.
(ii) Promptly upon the Company satisfying the eligibility criteria for use of
Form S-3 under the Securities Act, file a post-effective amendment to the
Registration Statement to convert it from a Form S-1 to a Form S-3
registration statement.
-23-
(iii)Notify each Market Maker, and (if requested by any such Market Maker)
confirm such advice in writing, (A) when any Prospectus supplement or
amendment or post-effective amendment to the Registration Statement has
been filed, and, with respect to any post-effective amendment, when the
same has become effective; (B) of any request by the SEC for any
post-effective amendment to the Registration Statement, any supplement or
amendment to the Prospectus or for additional information; (C) the issuance
by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; (D) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for such
purpose; (E) of the happening of any event which makes any statement made
in the Registration Statement, the Prospectus or any amendment or
supplement thereto untrue or which requires the making of any changes in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, in order to make the statements therein not misleading; and (F) of
any advice from a nationally recognized statistical rating organization
that such organization has placed the Company under surveillance or review
with negative implications or has determined to downgrade the rating of the
Securities or the Exchange Securities or any other debt obligation of the
Company whether or not such downgrade shall have been publicly announced.
(iv) Furnish to each Market Maker, without charge, (i) at least one conformed
copy of any post-effective amendment to the Registration Statement; and
(ii) as many copies of any amendment or supplement to the Prospectus as the
Market Makers may request.
(v) Consent to the lawful use of the Prospectus or any amendment or supplement
thereto by the Market Makers in connection with the offering and sale of
the Securities.
(vi) For so long as the Securities shall be outstanding, furnish to the Market
Makers (A) as soon as practicable after the end of each fiscal year, the
number of copies reasonably requested by the Market Makers of the Company's
annual report to stockholders for such year, and (B) as soon as available,
the number of copies reasonably requested by the Market Makers of each
report (including, without limitation, Reports on Forms 10-K, 10-Q and 8-K)
or definitive proxy statements of the Company filed under the Exchange Act
or mailed to stockholders.
(vii)In the event of the issuance of any stop order suspending the effectiveness
of the Registration Statement or of any order suspending the qualification
of the Securities or the Exchange Securities for sale in any jurisdiction,
to use promptly its best efforts to obtain its withdrawal.
(b) The Company represents that any post-effective amendments to the
Registration Statement, any amendments or supplements to the Prospectus and
any documents filed under the Exchange Act will, when they become effective
or are filed with the SEC, as the case may be, conform in all respects to
the requirements of the Securities Act and the rules and regulations of the
SEC thereunder and will not, as of the effective date of such
post-effective amendments and as of the filing date of amendments or
supplements to the Prospectus or filings under the Exchange Act contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
-24-
furnished to the Company by the Market Makers specifically for inclusion
therein, which information the parties hereto agree will be limited to the
statements concerning the market-making activities of the Market Makers to
be set forth on the cover page and in the "Plan of Distribution" section of
the Prospectus.
(c) Each time that the Registration Statement or Prospectus shall be amended or
the Prospectus shall be supplemented, the Company shall, concurrently with
such amendment or supplement, if reasonably requested by any of the Market
Makers, furnish the Market Makers and their counsel with a certificate of
its Chairman of the Board or its President and its chief financial officer
to the effect that:
(i) The Registration Statement has been declared effective and such amendment
has become effective under the Securities Act as of the date and time
specified in such certificate; such amendment to the Prospectus (or such
supplement to the Prospectus, as the case may be) was filed with the SEC
pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such certificate on the date specified therein; and, to the
knowledge of such officers, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the SEC; and
(ii) Such officers have carefully examined the Registration Statement and the
Prospectus and such amendment or supplement thereto and, in their opinion,
as of the date of such amendment or supplement, the Registration Statement
and the Prospectus, as amended or supplemented, as the case may be, did not
include any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) Each time that the Registration Statement or Prospectus shall be amended or
the Prospectus shall be supplemented, the Company shall, concurrently with
such amendment or supplement, if reasonably requested by any Market Maker,
furnish the Market Makers and their counsel with the written opinion of
counsel for the Company satisfactory to the Market Maker to the effect
that:
(i) The Registration Statement has been declared effective and such amendment
has become effective under the Securities Act as of the date and time
specified in such certificate, such amendment to the Prospectus (or such
supplement to the Prospectus, as the case may be) was filed with the SEC
pursuant to the subparagraph Rule 424(b) under the Securities Act specified
in such opinion on the date specified therein; and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
is pending or threatened by the SEC; and
(ii) Counsel for the Company has reviewed such amendment or supplement and
participated with officers of the Company and independent public
accountants for the Company in the preparation of such amendment or
supplement and has no reason to believe that the Registration Statement (or
any post-effective amendment thereto), at the time of its effective date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
-25-
(e) Each time that the Registration Statement or Prospectus shall be amended or
the Prospectus shall be supplemented to include audited annual financial
information, the Company shall, concurrently with such amendment or
supplement, if reasonably requested by any Market Maker, furnish the Market
Makers and their counsel with a letter of Pricewaterhouse Coopers LLC (or
other independent public accountants for the Company of nationally
recognized standing), in form satisfactory to the Market Makers, addressed
to the Market Makers and dated the date of delivery of such letter, (i)
confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the SEC and (ii) a letter substantially in the form of
the letter delivered to the Initial Purchasers pursuant to Section 6(g) of
the Purchase Agreement with such changes as may be necessary to reflect the
amended or supplemental financial information.
(f) The Company hereby agrees to indemnify each Market Maker, and if
applicable, contribute to each such Market Maker, in accordance with the
terms of Section 7 hereof.
(g) The Company will comply with the provisions of this Section 11 at its own
expense and will reimburse the Market Makers for their expenses associated
with this Section 11 (including fees of counsel); provided that the Company
shall not be obligated to reimburse the Market Makers for their expenses
associated with this Section 11 (excluding, for these purposes, any
reimbursement obligation pursuant to Section 7 hereof), to the extent such
expenses exceed $10,000 per annum.
(h) The agreements contained in this Section 11 and the representations,
warranties and agreements contained in this Agreement shall survive all
offers and sales of the Securities and the Exchange Securities and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any indemnified party.
(i) For purposes of this Section 11, any reference to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to refer to and include the filing under the
Exchange Act on or after the date the Registration Statement is converted
to Form S-3 of any document deemed to be incorporated therein by reference.
(j) The Company shall have no further obligations under this Section 11 to a
Market Maker upon receipt of written notice (a "Market Maker Termination
Notice") from such Market Makers indicating that such Market Maker has
ceased to engage in the business of making a market in securities of the
type issued by the Company under the Indenture ("Market Making") and each
of the Market Makers shall be obligated to provide the Company with a
Market Maker Termination Notice as soon as reasonably practicable following
the date such Market Maker ceases Market Making.
-26-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TRITON PCS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chief Financial Officer
TRITON MANAGEMENT COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chief Financial Officer
TRITON PCS FINANCE COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:President
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS PROPERTY COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS LICENSE COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY,
INC., as Manager of each of the
foregoing
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chief Financial Officer
-27-
CHASE SECURITIES INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
▇▇▇▇▇▇ BROTHERS INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
ABN AMRO INCORPORATED,
CREDIT LYONNAIS SECURITIES (USA) INC.,
PNC CAPITAL MARKETS, INC.
SCOTIA CAPITAL MARKETS (USA) INC.,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
TD SECURITIES (USA) INC.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
By: CHASE SECURITIES INC.,
as Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
as Representative
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principle