Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of November 14, 2001
among
TRITON PCS, INC.,
THE GUARANTORS NAMED HEREIN
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
CIBC WORLD MARKETS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇-GRANTCHESTER, INC.
FLEET SECURITIES, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATCITY INVESTMENTS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
SCOTIA CAPITAL MARKETS (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
and
TD SECURITIES (USA) INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
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November 14, 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
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listed on the signature pages hereof (the "Guarantors" and, together with the
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Company, the "Issuers") and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., ▇▇▇▇▇▇▇ LYNCH, PIERCE,
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▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, CIBC WORLD MARKETS CORP., CREDIT LYONNAIS
SECURITIES (USA) INC., CREDIT SUISSE FIRST BOSTON CORPORATION, DRESDNER
KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇-GRANTCHESTER, INC., FLEET SECURITIES, INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& CO. INCORPORATED, NATCITY INVESTMENTS, INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., SCOTIA
CAPITAL MARKETS (USA) INC., SUNTRUST CAPITAL MARKETS, INC. AND TD SECURITIES
(USA) INC. (collectively, the "Initial Purchasers").
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This Agreement is entered into in connection with the Purchase Agreement,
dated as of November 7, 2001, among the Company, the Guarantors and the Initial
Purchasers (the "Purchase Agreement") relating to the sale by the Company to the
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Initial Purchasers of $400,000,000 aggregate principal amount of its 8 3/4%
Senior Subordinated Notes due 2011 (the "Notes") and the issuance by the
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Guarantors to the Initial Purchasers of guarantees (the "Guarantees" and
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together with the Notes, the "Securities"). In order to induce the Initial
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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
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As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4.
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Advice: See Section 5.
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Applicable Period: See Section 2(b).
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Blocking Notice: Written notice from the Company that (i) an amendment or
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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
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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
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.
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Closing Date: The "Closing Date" as defined in the Purchase Agreement.
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Company: See the introductory paragraph to this Agreement.
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Consummation Date: The 180th day after the Closing Date.
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Effectiveness Date: The 150th day after the Closing Date.
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Effectiveness Period: See Section 3(a).
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Event Date: See Section 4(b).
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
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Exchange Registration Statement: See Section 2(a).
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Exchange Securities: See Section 2(a).
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Filing Date: The 90th day after the Closing Date.
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Guarantors: See the introductory paragraph to this Agreement.
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Holder: Any record holder of Registrable Securities and each Market Maker
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holding Securities, Exchange Securities or Private Exchange Securities from time
to time.
Indemnified Person: See Section 7.
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Indemnifying Person: See Section 7.
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Indenture: The Indenture, dated as of November 14, 2001, among the Company,
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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.
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Initial Shelf Registration: See Section 3(a).
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Inspectors: See Section 5(p).
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Issue Date: November 14, 2001, the original issue date of the Securities.
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Issuers: See the introductory paragraph to this Agreement.
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Market Makers: See Section 11(a).
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Market Making: See Section 11(j).
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Market Maker Termination Notice: See Section 11(j).
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NASD: See Section 5(t).
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Notes: See the preamble to this Agreement.
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Participant: See Section 7.
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Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, limited or general partnership, joint
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venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Private Exchange: See Section 2(b).
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Private Exchange Securities: See Section 2(b).
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Prospectus: The prospectus included in any Registration Statement
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(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).
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Registrable Securities: The Securities, upon original issuance thereof
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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
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Guarantors, including, but not limited to, the Exchange Registration Statement
and any registration statement required pursuant to 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
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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
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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
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities: See the preamble to this Agreement.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
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regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
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Shelf Registration: See Section 3(b).
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Subsequent Shelf Registration: See Section 3(b).
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee as defined in the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Securities and Private
Exchange Securities (if any).
Underwritten registration or underwritten offering: A registration in
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connection with which Registrable Securities are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. Exchange Offer
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(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
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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
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Indenture (with only such changes as are necessary to comply with 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
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Registration Statement") and will comply with all applicable tender offer
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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
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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
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Broker-Dealer"), whether such positions or policies have been publicly
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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 Securities; provided that such period shall not exceed 180
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days (or such longer period if extended pursuant to the last paragraph of
Section 5) (the "Applicable Period").
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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
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Purchaser, a like principal amount of debt securities of the Company that are
identical in all material respects to the Exchange Securities (the "Private
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Exchange Securities") (and which are issued pursuant to the Indenture) except
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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
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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
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If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration. The Issuers shall as promptly as
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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
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Registration"). If the Issuers shall have not yet filed an Exchange Offer,
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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 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
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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
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or any Subsequent Shelf Registration ceases to be effective for any reason
at any time during the Effectiveness Period (other than because of the sale
of all 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
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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
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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
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Self Registration Statement. No Holder of Registrable Securities may
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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
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(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 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
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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
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not exceed at any one time in the aggregate 1.0% per annum; and provided,
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further, that (1) upon the filing of the Exchange Registration Statement or a
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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
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shall pay the Additional Interest due on the Registrable Securities by
depositing 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 November 1 or May 1, 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
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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
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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,
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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 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 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
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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 within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriters reasonably request in writing; provided that where
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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
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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 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,
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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 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.
(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").
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(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
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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 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
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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
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(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 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
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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
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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
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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
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notify the person against whom such indemnity may be sought (the "Indemnifying
------------
Person") in writing, and the Indemnifying Person, upon request of the
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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
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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
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 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 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 ▇.▇. ▇▇▇▇▇▇ Securities Inc. at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; and
(iii) if to the Issuers, at Triton PCS, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer; with a copy
to Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
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.
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.
(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
---------------------
Except during a Blocking Period, the Company will, for the sole benefit of ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, CIBC
World Markets Corp., Credit Lyonnais Securities (USA) Inc., Credit Suisse First
Boston Corporation, Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇-Grantchester, Inc., Fleet
Securities, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, NatCity Investments, Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Scotia Capital Markets (USA) Inc., SunTrust Capital
Markets, Inc. and TD Securities (USA) 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.
(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
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.
(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 PricewaterhouseCoopers LLP
(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.
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
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CIBC WORLD MARKETS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇-GRANTCHESTER,
INC.
FLEET SECURITIES, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATCITY INVESTMENTS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
SCOTIA CAPITAL MARKETS (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Representative
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED,
as Representative
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director