REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 11, 1999
BY AND AMONG
TRITEL PCS, INC.,
ISSUER,
TRITEL, INC.,
TRITEL COMMUNICATIONS, INC.,
TRITEL FINANCE, INC.,
Guarantors
AND
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
BARCLAYS CAPITAL INC.
TD SECURITIES (USA) INC.
BNY CAPITAL MARKETS, INC.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
This Registration Rights Agreement (this "AGREEMENT") is made
and entered into as of May 11, 1999, by and among Tritel PCS, Inc., a Delaware
corporation (the "COMPANY"), Tritel, Inc., a Delaware corporation, Tritel
Communications, Inc., a Delaware corporation, and Tritel Finance, Inc., a
Delaware corporation (each, a "GUARANTOR" and, collectively, the "GUARANTORS"),
and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, Barclays Capital Inc., TD Securities
(USA) Inc., BNY Capital Markets, Inc., CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and Credit
Lyonnais Securities (USA) Inc. (each, an "INITIAL PURCHASER" and, collectively,
the "INITIAL PURCHASERS"), each of whom has agreed to purchase the Company's
12 3/4% Senior Subordinated Discount NOTES due 2009 (the "NOTES") pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated May 6, 1999 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Notes, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 5 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them under the Indenture, dated as of
May 11, 1999, entered into by and among the Company, the Guarantors and The Bank
of New York, as Trustee, relating to the Notes and the Exchange Notes (the
"INDENTURE"). The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the
period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Notes tendered
by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Sections 3(a) and 4(a)
hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 12 3/4% Senior Subordinated
Discount Notes due 2009 to be issued pursuant to the Indenture: (i) in the
Exchange Offer or (ii) as contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by Holders thereof in connection with such exchange
and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act and pursuant to
Regulation S under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended, modified or supplemented by any prospectus supplement and ---------- by
all other amendments thereto, including post-effective amendments, and all
materials incorporated by reference into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Guarantors relating to (a) an Exchange Offer or (b) the
registration for resale of Transfer
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Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and materials
incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 as in effect on the date
of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each (a) Note, until the
earliest to occur of (i) the date on which such Note is exchanged in the
Exchange Offer for an Exchange Note by a Holder other than a Broker-Dealer, (ii)
following the exchange by a broker-dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Note has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Notes), or (iv) the date on which
such Note is distributed to the public pursuant to Rule 144 under the Act or is
saleable pursuant to Rule 144(k) under the Act (or similar provisions then in
effect) and (b) Exchange Note held by a Broker-Dealer until the date on which
such Exchange Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Section 2. Holders. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a "HOLDER") whenever such Person owns
Transfer Restricted Securities.
Section 3. Registered Exchange Offer. (a) Unless the Exchange
Offer shall not be permitted by applicable federal law (after the procedures set
forth in Section 6(a)(i) hereof have been complied with), the Company and the
Guarantors shall (i) cause the Exchange Offer Registration Statement to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 60 days after the Closing Date (such 60th day being the "FILING
DEADLINE"), (ii) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 210 days after the Closing Date (such 210th day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
3
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Exchange Notes to be offered in exchange for the Notes that
are Transfer Restricted Securities and (ii) resales of Exchange Notes by any
Broker-Dealer that tendered into the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its Affiliates) as contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Notes and
Guarantees shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use their respective reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter (such 30th day being the
"CONSUMMATION DEADLINE"), unless a longer period is required by the federal
securities laws.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Notes acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because any such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer,
the Company and the Guarantors shall permit the use of the Prospectus
4
contained in the Exchange Offer Registration Statement by such Broker-Dealer to
satisfy such prospectus delivery requirement through the Consummation Deadline
and thereafter as provided in the remainder of this paragraph. To the extent
necessary to ensure that the prospectus contained in the Exchange Offer
Registration Statement is available for sales of Exchange Notes by any
Broker-Dealer that acquired Exchange Notes as a result of market-making or
similar activities such that the Broker-Dealer would be required to deliver a
prospectus under the Act upon a subsequent sale or other disposition of the
Exchange Notes, the Company and the Guarantors agree to use their respective
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(a) and 6(c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission, as announced from time to time, for a period of
one year (as extended due to events specified in Section 6(c)(i) hereof) from
the Consummation Deadline or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Company and the Guarantors shall provide sufficient
copies of the latest version of such Prospectus to such Broker-Dealers, promptly
upon request, and in no event later than one day after the date of such request,
at any time during such period.
Section 4. Shelf Registration. (a) Shelf Registration. If (i)
the Exchange Offer is not permitted by applicable law (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(a)(i)
hereof) or (ii) if any Holder of Transfer Restricted Securities shall notify the
Company in writing prior to the 20th day following the Consummation Deadline
that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer, (B) such Holder may not resell the Exchange
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Notes acquired directly from the
Company or any of its Affiliates, then the Company and the Guarantors shall: (x)
cause to be filed, on or prior to 30 days after the earlier of (1) the date on
which the Company determines that the Exchange Offer Registration Statement need
not or cannot be filed as a result of clause (a)(i) above and (2) the date on
which the Company receives the notice specified in clause (a)(ii) above, (such
earlier date, the "FILING DEADLINE"), a shelf registration statement pursuant to
Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to all
Transfer Restricted Securities, and (y) shall use their respective reasonable
best efforts to cause such Shelf Registration Statement to become effective on
or prior to 90 days after the Filing Deadline for the Shelf Registration
Statement (such 90th day being the "EFFECTIVENESS DEADLINE").
If, after the Company and the Guarantors
filed an Exchange Offer Registration Statement that satisfies the requirements
of Section 3(a) hereof, the Company and the Guarantors are required to file
and make effective a Shelf Registration Statement solely because the Exchange
Offer is not permitted under applicable federal law (i.e., clause (a)(i) above),
then the
5
filing of the Exchange Offer Registration Statement shall be deemed to satisfy
the requirements of clause (x) above; provided that, in such event, the Company
and the Guarantors shall remain obligated to meet the Effectiveness Deadline set
forth in clause (y) above.
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their respective reasonable
best efforts to keep any Shelf Registration Statement required by this Section
4(a) continuously effective, supplemented, amended and current as required by
and subject to the provisions of Sections 6(b) and 6(c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission, as announced from time to time, for a period of
at least two years (as extended due to events specified in Section 6(c)(i)
hereof) following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508, as applicable, of
Regulation S-K of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to furnish promptly additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
Section 5. Liquidated Damages. If (i) any Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the applicable Filing Deadline, (ii) any such Registration Statement
has not been declared effective by the Commission on or prior to the applicable
Effectiveness Deadline, (iii) the Exchange Offer has not been Consummated on or
prior to the Consummation Deadline, (iv) the Shelf Registration Statement is
declared effective but thereafter, pending the announcement of a material
corporate transaction, the Company issues a notice that the Shelf Registration
Statement is unusable, or such notice is required under applicable securities
laws to be issued by the Company, and, during the period specified in Section
4(a) hereof, the aggregate number of days in any consecutive twelve-month period
for which all such notices are issued or required to be issued exceeds 45 days,
or (v) the Exchange Offer Registration Statement is filed and declared effective
but thereafter shall cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment to
such Exchange Offer Registration Statement that cures such failure and that is
itself declared effective immediately (each such event referred to in clauses
(i)
6
through (v), a "REGISTRATION DEFAULT"), then the Company and the Guarantors
hereby jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages in an amount equal to $.05 per
week per $1,000 in principal amount of Transfer Restricted Securities held by
such Holder for each week or portion thereof that the Registration Default
continues for the first 90-day period immediately following the occurrence of
such Registration Default. The amount of the liquidated damages shall increase
by an additional $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of liquidated
damages for all Registration Defaults of $.25 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Company and the
Guarantors shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (i) above, (2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii)
above, or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) or (v) above,
as applicable, the liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii), (iv) or (v),
as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company and the Guarantors to pay accrued liquidated damages
with respect to such securities shall survive until such time as such
obligations with respect to such securities shall have been satisfied in full.
Section 6. Registration Procedures. (a) Exchange Offer
Registration Statement. In connection with the Exchange Offer, the Company and
the Guarantors shall (x) comply with all applicable provisions of Section 6(c)
hereof, (y) use their respective reasonable best efforts to effect such exchange
and to permit the resale of Exchange Notes by any Broker-Dealer that tendered in
the Exchange Offer Notes that such Broker-Dealer acquired for its own account as
a result of its market-making activities or other trading activities (other than
Notes acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the date hereof there has
been announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in
7
the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Guarantors to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Company and the Guarantors
hereby agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the
Company and the Guarantors hereby agree to take all such other
actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff.
(ii) As a condition to its participation in
the Exchange Offer, each Holder of Transfer Restricted
Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A)
it is not an Affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in
its ordinary course of business. As a condition to its
participation in the Exchange Offer, each Holder using the
Exchange Offer to participate in a distribution of the
Exchange Notes shall acknowledge and agree that if the resales
are of Exchange Notes obtained by such Holder in exchange for
Notes acquired directly from the Company or an Affiliate
thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of
the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991), as interpreted in the
Commission's letter to Shearman & Sterling, dated July 2,
1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange
Offer Registration Statement, the Company and the Guarantors
shall provide a supplemental letter to the Commission (A)
stating that the Company and the Guarantors are registering
the Exchange Offer in
8
reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988) and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling,
dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person
to distribute the Exchange Notes to be received in the
Exchange Offer and that, to the best of the Company's and each
Guarantor's information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange
Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In
connection with the Shelf Registration Statement, the Company
and the Guarantors shall:
(i) comply with all of the provisions of
Section 6(c) hereof and use their respective reasonable best
efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant
to Section 4(b) hereof), and pursuant thereto, the Company and
the Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof within the time periods specified and otherwise in
accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder
or purchaser of Notes covered by any Shelf Registration
Statement contemplated by this Agreement, Exchange Notes
having an aggregate principal amount equal to the aggregate
principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for
cancellation; the Company shall register Exchange Notes on the
Shelf Registration Statement for this purpose and issue the
Exchange Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such
purchaser(s) shall designate.
(c) General Provisions. In connection with
any Registration Statement and any related Prospectus required by this
Agreement, the Company and the Guarantors shall:
(i) use their respective reasonable best
efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for
the
9
period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or
omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective
and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the
Guarantors shall file promptly an appropriate amendment to
such Registration Statement curing such defect, and, if
Commission review is required, use their respective reasonable
best efforts to cause such amendment to be declared effective
as soon as practicable;
(ii) prepare and file with the Commission
such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if
requested by such Holder, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of
any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws,
10
the Company and the Guarantors shall use their respective
reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact
or event contemplated by Section 6(c)(iii)(D) hereof shall
exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(v) furnish to each Holder in connection
with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will
be subject to the review and comment of such Holders in
connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to
which such Holders shall reasonably object within five
Business Days after the receipt thereof. A Holder shall be
deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material
fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the
Act;
(vi) promptly, prior to the filing of any
document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such
document to each Holder in connection with such exchange or
sale, if any, make the Company's and the Guarantors'
representatives available for discussion of such document and
other customary due diligence matters, and include such
information in such document prior to the filing thereof as
such Holders may reasonably request;
(vii) make available, at reasonable times,
for inspection by each Holder and any attorney or accountant
retained by such Holder, all financial and other records,
pertinent corporate documents of the Company and the
Guarantors and cause the Company's and the Guarantors'
officers, directors and employees to supply all information
reasonably requested by any such Holder, attorney or
accountant in connection with such Registration Statement or
any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
11
(viii) if requested by any Holder in
connection with such exchange or sale, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such Holders may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities;
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection
with such exchange or sale, without charge, at least one copy
of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each Holder, without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors
hereby consent to the use (in accordance with applicable law,
rules, regulations and orders) of the Prospectus and any
amendment or supplement thereto by each selling Holder in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) upon the request of any Holder, enter
into such agreements (including underwriting agreements) and
make such representations and warranties and take all such
other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement
contemplated by this Agreement as may be reasonably requested
by any Holder in connection with any sale or resale pursuant
to any applicable Registration Statement. In such connection,
the Company and the Guarantors shall:
(A) upon the request of
any Holder furnish (or in the case of
paragraphs (2) and (3) below, use its
reasonable best efforts to cause to be
furnished) to each Holder, upon Consummation
of the Exchange Offer or upon the
effectiveness of the Shelf Registration
Statement, as the case may be:
(1) a certificate,
dated such date, signed on behalf of
the Company and each Guarantor by (x)
the Chairman of the Board, Chief
Executive Officer or President and (y)
the Chief Financial Officer or Chief
Accounting Officer of the Company and
such Guarantor, confirming, as of the
date thereof, the matters set forth in
Section 5(g) of the Purchase Agreement
and such other similar matters as such
Holders may reasonably request;
12
(2) an opinion,
dated the date of Consummation of the
Exchange Offer or the date of
effectiveness of the Shelf Registration
Statement, as the case may be, of
counsel for the Company and the
Guarantors covering matters similar to
those set forth in paragraph (c) of
Section 5 of the Purchase Agreement and
Exhibit B thereto and such other matter
as such Holder may reasonably request,
and in any event including a statement
to the effect that such counsel has
participated in conferences with
officers and other representatives of
the Company and the Guarantors,
representatives of the independent
public accountants for the Company and
the Guarantors and have considered the
matters required to be stated therein
and the statements contained therein,
although such counsel has not
independently verified the accuracy,
completeness or fairness of such
statements; and that such counsel
advises that, on the basis of the
foregoing (relying as to materiality to
the extent such counsel deems
appropriate upon the statements of
officers and other representatives of
the Company and the Guarantors) and
without independent check or
verification, no facts came to such
counsel's attention that caused such
counsel to believe that the applicable
Registration Statement, at the time
such Registration Statement or any
post-effective amendment thereto became
effective and, in the case of the
Exchange Offer Registration Statement,
as of the date of Consummation of the
Exchange Offer, contained an untrue
statement of a material fact or omitted
to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading, or
that the Prospectus contained in such
Registration Statement as of its date
and, in the case of the opinion dated
the date of Consummation of the
Exchange Offer, as of the date of
Consummation, contained an untrue
statement of a material fact or omitted
to state a material fact necessary in
order to make the statements therein,
in the light of the circumstances under
which they were made, not misleading.
Without limiting the foregoing, such
counsel may state further that such
counsel assumes no responsibility for,
and has not independently verified, the
accuracy, completeness or fairness of
the financial statements, the notes and
schedules thereto and other financial
data and statistical data included in
any Registration Statement contemplated
by this Agreement or the related
Prospectus; and
(3) a customary
comfort letter, dated the date of
Consummation of the Exchange Offer, or
as of the date of effectiveness of the
Shelf Registration Statement, as the
case may be, from the Company's
independent accountants, in the
customary form and covering matters of
the type customarily covered in comfort
letters to underwriters in
13
connection with underwritten public
offerings, and covering the matters set
forth in the comfort letters delivered
pursuant to
Section 5(a) of the Purchase Agreement;
and
(B) deliver such other
documents and certificates as may be
reasonably requested by the selling Holders
to evidence compliance with the matters
covered in clause (A) above and with any
customary conditions contained in any
agreement entered into by the Company and
the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of
Transfer Restricted Securities, cooperate with the selling
Holders and their counsel in connection with the registration
and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the
selling Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would
subject it to service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xiii) in connection with any sale of
Transfer Restricted Securities that will result in such
securities no longer being Transfer Restricted Securities,
cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the selling
Holders may request at least two Business Days prior to any
sale of such Transfer Restricted Securities;
(xiv) use their respective reasonable best
efforts to cause the disposition of the Transfer Restricted
Securities covered by the Registration Statement to be
registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso
contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with the Depository Trust
Company;
14
(xvi) otherwise use their respective
reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally
available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month
period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xvii) cause the Indenture to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA and execute and use its reasonable
best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner;
(xviii) following the Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, whether or not
required by the Commission, file a copy of all of the
following information and reports with the Commission for
public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will
not accept such a filing) and make such information available
to securities analysts and prospective investors upon request:
(A) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such
Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with
respect to the annual information only, a report on the annual
financial statements by the Company's certified independent
accountants; and (B) all current reports that would be
required to file such reports.
(xix) the Company and the Guarantors will be
deemed not to have used their reasonable best efforts to cause
the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if the Company
or any of the Guarantors takes any action that would, or omits
to take any action which omission would, result in any such
Registration Statement not being declared effective or in the
Holders of Transfer Restricted Securities covered thereby not
being able to exchange or offer and sell such Transfer
Restricted Securities during that period as and to the extent
contemplated hereby, unless (A) such action is required by
applicable law or (B) such action is taken by the Company and
the Guarantors in good faith and for valid business reasons
(but not including avoidance of the Company's or the
Guarantors', as applicable, obligations hereunder), including
a
15
material corporate transaction, as long as the Company and
the Guarantors promptly comply with the requirements of
Section 6(c)(iv) hereof, if applicable.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) hereof or any notice from the Company of the existence
of any fact or the happening of any event of the kind described in Section
6(c)(iii)(D) hereof or, in the case of the Shelf Registration, the Company shall
issue a notice pending the announcement of a material corporate transaction that
the Shelf Registration Statement is unusable (in each case, a "SUSPENSION
NOTICE"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "RECOMMENCEMENT DATE"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the Recommencement Date.
Section 7. Registration Expenses. (a) All expenses incident to
the Company's and the Guarantors' performance of or compliance with this
Agreement will be borne, jointly and severally, by the Company and the
Guarantors, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and the Guarantors, as
well as the Holders of Transfer Restricted Securities (which counsel for the
Holders shall be chosen by the Holders of a majority of the outstanding Transfer
Restricted Securities); (v) all application and filing fees in connection with
listing the Exchange Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance); (vii) all rating agency fees, if
any; and (viii) all fees and expenses relating to the qualification of the
Indenture under the applicable securities laws.
16
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities who are tendering Notes into the Exchange Offer and/or selling or
reselling Notes or Exchange Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Shearman & Sterling, unless another firm shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
Section 8. Indemnification. (a) The Company and the Guarantors
agree, jointly and severally, to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls such Initial
Purchasers or Holder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), including, with respect to such Initial Purchasers or
Holder or controlling person, their respective directors, agents, officers and
employees, from and against: (i) any and all loss, liability, claim, damage,
expense and action whatsoever, joint or several, as incurred, to which such
Holder, Initial Purchasers or controlling person or any such director, agent,
officer or employee may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise, arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment or
supplement thereto), including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; (ii) any and all loss, liability, claim, damage,
expense or action whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that (subject to Section
8(d) hereof) any such settlement is effected with the written consent of the
Company and/or any Guarantor; (iii) in whole or in part upon any failure of the
Company or any Guarantor to perform its obligations hereunder or under law; (iv)
any act or failure to act or any alleged act or failure to act by any such
Holder, Initial Purchaser or controlling person, or their respective directors,
agents, officers and employees, in connection
17
with, or relating in any manner to, the exchange or sale of Transfer Restricted
Securities contemplated hereby, and which is included as part of or referred to
in any and all losses, claims, damages, liabilities, expenses or actions arising
out of or based upon any matter covered by clause (i) or (ii) above, provided
that neither the Company nor any Guarantor shall be liable under this Section
8(a) to the extent that a court of competent jurisdiction shall have determined
by a final judgment that such loss, claim, damage, liability, expense or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Holder, underwriter or controlling person, or their respective
directors, agents, officers and employees, through its gross negligence or
willful misconduct; or (v) any and all expenses whatsoever, joint or severeal,
as incurred (including the fees and disbursements of counsel chosen by any
indemnified party, subject to the limitations in Section 8(c) below), reasonably
incurred in investigating, preparing or defending against any litigation or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraphs (i) through (iv) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage, expense or action to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company and the Guarantors by the Initial Purchasers or such Holder expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto); and provided, further, that the
Company and the Guarantors shall not be liable to the Initial Purchasers or any
Holder, or their respective directors, agents, officers, employees or any person
controlling such Initial Purchasers or Holder, with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary Prospectus to the extent that the Company and the Guarantors
shall sustain the burden of proving that any such loss, liability, claim,
damage, expense or action resulted from the fact that the Initial Purchaser or
any Holder sold the Notes to a person to whom such Initial Purchaser or Holder
failed to send or give, at or prior to the written confirmation of the sale of
such Notes, a copy of the final Prospectus (as amended or supplemented) if the
Company and the Guarantors have previously furnished copies thereof to the
Initial Purchasers and the Holders (sufficiently in advance of the Closing Date
to allow for distribution of the final Prospectus in a timely manner) and
complied with their obligations under Sections 3(c) hereof and 3(b) of the
Purchase Agreement and the loss, liability, claim, damage, expense or action of
the Initial Purchasers or any Holder resulted from an untrue statement or
omission or alleged untrue statement or omission of a material fact contained in
or omitted from such preliminary Prospectus (as amended or supplemented) which
was corrected in the final Prospectus (as amended or supplemented). The
indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company or any Guarantor may otherwise have. In the event
of an underwritten offering, as contemplated by Section 6 herein, the Company
and the Guarantors will also indemnify the underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their officers, directors, agents
18
and employees to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company and the
Guarantors, and their respective directors, agents, officers and employees, and
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company or the Guarantors to the same
extent as the foregoing indemnity from the Company and the Guarantors set forth
in clause (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use in
any Registration Statement. In no event shall any Holder, its directors, agents,
officers, employees or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, agents, officers, employees or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and otherwise to
participate in the defense of such action on behalf of such indemnified party.
Upon receipt of notice from the indemnifying party to such indemnified party of
such indemnifying party's election so to assume the defense of such action and
approval by the indemnified party's election so to assume the defense of such
action and approval by the indemnified party's counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses
19
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party (the Company and/or any Guarantor in the case of Section 8(a)
hereof and a majority of the Holders in the case of Section 8(b) hereof),
representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
The indemnifying party under this Section 8 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 judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability, expense or action by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8(c), the indemnifying party 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 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnified party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(d) If the indemnification provided for in this Section 8 is
for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or actions referred to therein, then each indemnifying
party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities, expenses or actions referred to therein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, from their sale
of Transfer Restricted Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors, on the one
hand, and the Holders, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities, expenses
or actions, as well as any other relevant equitable considerations. The relative
fault of the Company
20
and the Guarantors, on the one hand, and the Holders, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Guarantors, on the one hand, or the Holders, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities, expenses or actions referred
to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities, expenses or actions referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims,
damages, liabilities, expenses or actions. Notwithstanding the provisions of
this Section 8, no Holder, or its directors, agents, officers, employees or any
Person, if any, who controls such Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of Transfer Restricted Securities pursuant
to a Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several, in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder, and not joint.
Section 9. Reports and Rule 144A. The Company and each
Guarantor agree with each Holder, for so long as any Transfer Restricted
Securities remain outstanding (i) whether or not required by the Commission, the
Company shall furnish to the Holders of Notes, within the time periods specified
in the Commission's rules and regulations, (A) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual information only, a
report on the annual financial statements by the Company's certified independent
accountants, and (B) all current reports that would be required
21
to be filed with the Commission on Form 8-K if the Company were required to file
such reports and (ii) to make available, upon the request of any Holder, to such
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
Section 10. Miscellaneous. (a) Remedies. The Company and the
Guarantors acknowledge and agree that any failure by the Company and/or the
Guarantors to comply with their respective obligations under Sections 3 and 4
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's and the Guarantors'
obligations under Sections 3 and 4 hereof. The Company and the Guarantors
further agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 10(c)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by
the Company or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements
22
directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of the Holders hereunder.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telecopier, or air
courier guaranteeing overnight delivery:
(1) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(2) if to the Company or the Guarantors:
Tritel PCS, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
With a copy to:
▇▇▇▇▇ & Wood LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(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; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any
23
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TRITEL PCS, INC.
By:
-------------------------------------------
Name:
Title:
TRITEL, INC.
By:
-------------------------------------------
Name:
Title:
TRITEL COMMUNICATIONS, INC.
By:
-------------------------------------------
Name:
Title:
TRITEL FINANCE, INC.
By:
-------------------------------------------
Name:
Title:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇
SECURITIES LLC
By:
-------------------------------------------
Name:
Title:
BARCLAYS CAPITAL INC.
By:
-------------------------------------------
Name:
Title:
TD SECURITIES (USA) INC.
By:
-------------------------------------------
Name:
Title:
BNY CAPITAL MARKETS, INC.
By:
----------------------------
Name:
Title:
CIBC WORLD MARKETS CORP.,
FORMERLY CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By:
-------------------------------------------
Name:
Title:
CREDIT LYONNAIS SECURITIES (USA) INC.
By:
-------------------------------------------
Name:
Title: