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EXHIBIT 4.3
EXECUTION COPY
TELECOMUNICACIONES DE PUERTO RICO, INC.
6.15% Senior Notes due 2002
6.65% Senior Notes due 2006
6.80% Senior Notes due 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
May 13, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Popular Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
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Telecomunicaciones de Puerto Rico, Inc., a corporation organized
under the laws of Puerto Rico (the "Company"), proposes to issue and sell to
certain purchasers (the "Initial Purchasers"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
$300,000,000 principal amount of its 6.15% Senior Notes Due 2002, $400,000,000
principal amount of its 6.65 % Senior Notes Due 2006 and $ 300,000,000
principal amount of its 6.80% Senior Notes Due 2009 (collectively, the
"Securities") each guaranteed by the Puerto Rico Telephone Company, Inc., a
Puerto Rico corporation and wholly owned subsidiary of the Company and
Celulares Telefonica, Inc., a Puerto Rico corporation and wholly owned
subsidiary of the Company (together, the "Subsidiary Guarantors"), relating to
the initial placement of the Securities (the "Initial Placement"). To induce
the Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition of your obligations thereunder, the Company and the Subsidiary
Guarantors (as defined in the Purchase Agreement) agree with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the respective meanings set forth in the Purchase Agreement. As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person shall mean any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person shall mean the power, direct or indirect, to direct or
cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Prospectus" shall mean the prospectus included
in the Exchange Offer Registration Statement, as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the New Securities covered by such
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Exchange Offer Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Exchange Offer Registration Period" shall mean the one-year
period following the consummation of the Registered Exchange Offer, exclusive
of any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments thereto, in
each case including the Exchange Offer Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of May 20, 1999, among the Company, the Subsidiary Guarantors and The
Bank of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Securities registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"New Securities" shall mean debt securities of the Company
identical in all material respects to the Securities (except that the interest
rate step-up provisions and the transfer restrictions shall be modified or
eliminated, as appropriate and interest shall accrue from the last date on
which interest was paid or duly provided for on the Securities or if no such
interest has been paid, from the date of original issue) and to be issued under
the Indenture or the New Securities Indenture.
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"New Securities Indenture" shall mean an indenture among the
Company, the Subsidiary Guarantors and the New Securities Trustee, identical in
all material respects to the Indenture (except that the interest rate step-up
provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean the Trustee or a bank or
trust company reasonably satisfactory to the Initial Purchasers, as trustee
with respect to the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant
to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or New Securities, as applicable (except
Securities which the Holders have elected not to include in such Shelf
Registration Statement or the Holders of which have not complied with their
obligations under Section 4(o) hereof), on an appropriate form under Rule 415
under the Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the
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Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company and the Subsidiary
Guarantors shall prepare and, not later than 90 days following the date of the
original issuance of the Securities, shall file with the Commission the
Exchange Offer Registration Statement with respect to the Registered Exchange
Offer. The Company and the Subsidiary Guarantors shall cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of the
date of the original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer,
it being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that such Holder
is not an Affiliate of the Company, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements or understanding with any
person to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days and not more than 40 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
(iii) use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective,
supplemented and amended as required, under the Act to ensure that it
is available for sales of New Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
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(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, if requested or required by the Commission, provide a
supplemental letter to the Commission (A) stating that the Company is
conducting the Registered Exchange Offer in reliance on the position of
the Commission in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991);
and (B) including a representation that the Company has not entered
into any arrangement or understanding with any person to distribute the
New Securities to be received in the Registered Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the
New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for
cancelation in accordance with Section 4(s) all Securities so accepted
for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate
and deliver to each Holder of Securities a principal amount of New
Securities equal to the principal amount of the Securities of such
Holder so accepted for exchange.
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(e) Each Holder hereby acknowledges and agrees that any such
Holder using the Registered Exchange Offer to participate in a distribution of
the New Securities (x) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx
and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y)
must comply with the registration and prospectus delivery requirements of the
Act in connection with any secondary resale transaction which 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 under
the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Company or
one of its Affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Company that, at the time
of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired
in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company.
(f) If in the reasonable opinion of an Initial Purchaser, such
Initial Purchaser is not eligible to participate in the Registered Exchange
Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the person purchasing Securities
registered under a Shelf Registration Statement as contemplated by Section 3
hereof from such Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company shall use its commercially
reasonable efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any
other reason the Exchange Offer Registration Statement is not declared effective
within 150 days of the date of original issuance of the Securities or the
Registered Exchange Offer is not consummated within 180 days of the date of
original issuance of the Securities; (iii) based on its reasonable opinion, any
Initial Purchaser so requests with respect to Securities that are not eligible
to be exchanged for New Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer, such request
to be in writing and delivered to the Company; (iv) any Holder (other than an
Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer or participates in
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the Registered Exchange Offer but does not receive freely tradeable New
Securities in the Registered Exchange Offer other than by reason of such Holder
being an Affiliate of the Company; or (v) in the case of any Initial Purchaser
that participates in the Registered Exchange Offer or acquires New Securities
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable New Securities in exchange for Securities constituting any portion of
an unsold allotment (it being understood that (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver an Exchange Offer Prospectus in connection with sales
of New Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not "freely
tradeable"), the Company and the Subsidiary Guarantors shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company and the Subsidiary Guarantors shall as
promptly as practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 3), file with the Commission and thereafter
shall cause to be declared effective under the Act a Shelf Registration
Statement relating to the offer and sale of the Securities or the New
Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by it covered
by such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
complies with the provisions of Section 4(o) hereof; and provided further, that
with respect to New Securities received by an Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment, the Company and the
Subsidiary Guarantors may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508
of Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company and the Subsidiary Guarantors shall use their
best efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective by
the Commission or such shorter period that will terminate when all the
Securities or New Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease
to be outstanding (in any such case, such period being called the "Shelf
Registration Period"). The Company and the Subsidiary Guarantors shall be
deemed not to have used their best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being
able to offer and sell such Securities during
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that period, unless (A) such action is required by applicable law; or (B) such
action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's and the Subsidiary Guarantors'
obligations hereunder), including but not limited to the acquisition or
divestiture of assets, so long as the Company and the Subsidiary Guarantors
promptly thereafter comply with the requirements of Section 4(k) hereof, if
applicable.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, 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; and
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(iii) any Prospectus forming part of any Registration Statement,
and any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit 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.
(c) The Company shall advise you, the Holders of Securities
covered by any Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (iii) through (v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such suspension):
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when any Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
In addition, the Company shall advise you and your counsel when
an Exchange Offer Registration Statement and any amendment thereto has
been filed with the Commission.
(d) The Company and the Subsidiary Guarantors shall use their
best efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement or the qualification of the securities therein
for sale in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
covered by any Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement
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and any post-effective amendment thereto, including all material incorporated
therein by reference, and, if the Holder so requests in writing, all exhibits
thereto (including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. The
Company and the Subsidiary Guarantors consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities covered
by the Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such person may
reasonably request. The Company and the Subsidiary Guarantors consent to the
use of the Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other person that may be required
to deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Exchange Offer
Registration Statement, for the Exchange Offer Registration Period or, if
earlier, when all New Securities received by the Broker-Dealer have been
disposed of by such Broker Dealer.
(i) Prior to the Registered Exchange Offer or any other offering
of Securities pursuant to any Registration Statement, the Company and the
Subsidiary Guarantors shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such jurisdictions
as any Holder shall reasonably request and will maintain such qualification in
effect so long as required; provided that in no event shall the Company or the
Subsidiary Guarantors be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits or taxes, other than those arising
out of the Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement, in any such jurisdiction where it
is not then so subject.
(j) The Company and the Subsidiary Guarantors shall cooperate
with the Holders of Securities to facilitate the timely preparation and
delivery of certificates representing New
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Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request at least two Business Days
prior to such sale of Securities or New Securities.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Subsidiary Guarantors shall
promptly prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to Initial Purchasers
of the securities included therein, the Prospectus will not include at the time
of such delivery 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. In such
circumstances, the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 and the Shelf Registration Statement
provided for in Section 3(b) shall each be extended by the number of days from
and including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchasers, the Holders
of the Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company shall provide a CUSIP number for the Securities or the
New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such Securities
or New Securities, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and the Subsidiary Guarantors shall comply with
all applicable rules and regulations of the Commission and shall make generally
available to its security holders as reasonably soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Company and the Subsidiary Guarantors shall cause the
Indenture or the New Securities Indenture, as the case may be, to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
and the Subsidiary Guarantors shall enter into such agreements (including if
requested an underwriting agreement in customary form) and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an
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underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 (or such other provisions and procedures acceptable to the
Majority Holders participating in the Shelf Registration and the Managing
Underwriters, if any) with respect to all parties to be indemnified pursuant to
Section 6.
(q) In the case of any Shelf Registration Statement, the Company
and the Subsidiary Guarantors, as applicable, shall:
(i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder, any underwriter participating
in any disposition pursuant to such Registration Statement, one firm of
legal counsel (in addition to local counsel), one firm of accountants
or other agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; provided, however,
that, if any such records, documents or other information relate to
pending or proposed acquisitions or dispositions, or otherwise relate
to matters reasonably considered by the Company to constitute sensitive
or proprietary information, the Company need not provide such records,
documents or information unless the foregoing parties enter into a
confidentiality agreement in customary form and reasonably acceptable
to such parties and the Company;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, legal counsel, accountant or agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that such information may
not be used for any purpose other than due diligence and provided
further, however, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering reasonably requested
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters; provided, however, that all
of such opinions
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shall be dated as of a single date and no updates thereof shall be
required; and provided, further, that except as set forth in this
paragraph (iv), the Company shall have no obligation to deliver any
legal opinions (excluding opinions delivered under Section 4(r)) under
or in connection with this Agreement;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement) or, if not available
under applicable accounting pronouncements or standards, procedures
letters and updates thereto, addressed to each selling Holder of
Securities registered thereunder and the underwriters, if any (provided
that such letters need not be addressed to any Holder to whom, in the
reasonable opinion of the Company's independent public accountants,
addressing such letters is not permissible under applicable accounting
standards), in customary form and covering matters of the type
customarily covered in "cold comfort" letters or procedures in
connection with primary underwritten offerings; provided, however, that
except as set forth in this Section 4(q)(v) or Section 4(r)(v), the
Company shall have no obligation to deliver any "cold comfort" or
"procedures" letters or any updates thereto under or in connection with
this Agreement; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders participating in the Shelf
Registration and the Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company and the Subsidiary Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this subsection
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
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(r) In the case of any Exchange Offer Registration Statement,
upon the request of any Initial Purchaser on behalf of any broker-dealer
participating in the Registered Exchange Offer, the Company and the Subsidiary
Guarantors, as applicable, shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and one firm of legal counsel (in addition to local
counsel), one firm of accountants or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries;
provided, however, that, if any such records, documents or other
information relate to pending or proposed acquisitions or dispositions,
or otherwise relate to matters reasonably considered by the Company to
constitute sensitive or proprietary information, the Company need not
provide such records, documents or information unless the foregoing
parties enter into a confidentiality agreement in customary form and
reasonably acceptable to such parties and the Company;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such legal counsel, accountant or agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that such information may
not be used for any purpose other than due diligence and provided
further, however, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by such Initial Purchaser
or any such attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
reasonably requested matters including, but not limited to, those set
forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to such Initial Purchaser and its
counsel, addressed to such Initial Purchaser, covering such matters as
are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Initial
Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement) or, if not available
under applicable accounting pronouncements or standards, procedures
letters and updates
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thereto, addressed to such Initial Purchaser (provided that such
letters need not be addressed to any Initial Purchaser to whom, in the
reasonable opinion of the Company's independent public accountants,
addressing such letters is not permissible under applicable accounting
standards), in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by such Initial
Purchaser or its counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards No.
35, covering matters requested by such Initial Purchaser or its
counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
subsection shall be performed at the close of the Registered Exchange Offer and
the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person
as directed by the Company) in exchange for the New Securities, the Company
shall xxxx, or cause to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the New Securities. In no event
shall the Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts (i) if the Securities
have been rated prior to the initial sale of such Securities, to confirm such
ratings will apply to the Securities or the New Securities, as the case may be,
covered by a Registration Statement; or (ii) if the Securities were not
previously rated, to cause the Securities covered by a Registration Statement
to be rated with at least one nationally recognized statistical rating agency,
if so requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such Broker-Dealer in complying with the requirements of such
Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities;
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(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(v) Holders of Securities or New Securities shall not use any
Registration Statement during a period when a stop order has been issued by the
Commission in respect thereof or use the Prospectus during a period when the
use of the Prospectus has been suspended in accordance with instructions of the
Company because of the discovery of any untrue statement or omission of a
material fact therein, provided that all Holders of Securities received prior
written notice of such stop order or suspension.
(w) The Company and the Subsidiary Guarantors shall use
reasonable efforts to take all other steps necessary to effect the registration
of the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Company and the Subsidiary
Guarantors shall bear all expenses incurred in connection with the performance
of its obligations under Sections 2, 3 and 4 hereof and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel designated by the Majority
Holders participating in the Shelf Registration to act as counsel for the
Holders in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the
reasonable fees and disbursements of counsel acting in connection therewith.
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Securities
pursuant to the Shelf Registration Statement.
6. Indemnification and Contribution. (a) The Company and the
Subsidiary Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement (including each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in Section 4(h) hereof,
each Exchanging Dealer), the directors, officers, employees and agents of each
such Holder and each person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they are made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
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defending any such loss, claim, damage, liability or action; provided, however,
that the Company and the Subsidiary Guarantors will not be liable in any case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such Holder
specifically for inclusion therein and provided further, however, that with
respect to any untrue statement or omission of a material fact made in any
preliminary Prospectus, the indemnity agreement contained in this Section 6(a)
shall not inure to the benefit of any Holder from whom the person asserting any
such loss, claim, damage or liability purchased the Securities or New
Securities, as the case may be, concerned, to the extent that any such loss,
claim, damage or liability of such Holder occurs under the circumstance where
it shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (i) the untrue statement or omission of a material
fact contained in the preliminary Prospectus was corrected in the Prospectus,
(ii) the Company had previously furnished copies of the Prospectus to such
Holder and (iii) such loss, claim, damage or liability results from the fact
that there was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities or New Securities, as the case may
be, to such person, a copy of the Prospectus; and provided, further, however,
that the Company shall not be liable to an indemnified party with respect to
any Prospectus or Registration Statement or any amendment or supplement to any
thereof to the extent that any such loss, claim, damage, liability or action of
such indemnified party arises out of, or is based upon, (a) the use of any
Registration Statement during a period when a stop order has been issued by the
Commission in respect thereof or (b) from the use of the Prospectus during a
period when the use of the Prospectus has been suspended in accordance with
instructions of the Company because of the discovery of any untrue statement or
omission of a material fact therein, provided that all Holders of Securities
received prior written notice of such stop order or suspension and such
indemnified party, knowingly and voluntarily continued to use such Prospectus
ro Registration Statement. The indemnity agreement will be in addition to any
liability which the Company and the Subsidiary Guarantors may otherwise have.
The Company and the Subsidiary Guarantors, jointly and
severally, also agree to indemnify or contribute as provided in Section 6(d) to
Losses of each underwriter of Securities or New Securities, as the case may be,
registered under a Shelf Registration Statement, their directors, officers,
employees or agents and each person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally and not jointly agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs such Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the
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foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded 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; (iii) 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 the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason although within the scope thereof, then each
applicable indemnifying party shall, in lieu of indemnifying such indemnified
party, have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Registration Statement which resulted
in such
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Losses; provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Security, or in the case of a New Security, applicable to
the Security that was exchangeable into such New Security, as set forth on the
cover page of the Final Memorandum, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Subsidiary Guarantors shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial Placement
(before deducting expenses) as set forth on the cover page of the Final
Memorandum and (y) the total amount of additional interest which the Company
was not required to pay as a result of registering the securities covered by
the Registration Statement which resulted in such Losses. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth
on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For purposes of
this Section, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the directors, officers, employees, agents or controlling
persons referred to in this Section hereof, and will survive the sale by a
Holder of securities covered by a Registration Statement.
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7. Underwritten Registrations. (a) If any of the Securities or
New Securities, as the case may be, covered by any Shelf Registration Statement
are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders participating in the underwritten offering.
(b) No person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such person (i) agrees to
sell such person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. No Inconsistent Agreements. Neither the Company nor any
Subsidiary Guarantor has, as of the date hereof, entered into, nor shall it, on
or after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein
or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
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 the Holders of at least a majority of the then outstanding aggregate
principal amount of Securities (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities);
provided that, with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or New
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
Securities or New Securities, as the case may be, being sold rather than
registered under such Registration Statement.
10. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, telex,
telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy in like manner to
Xxxxxxx Xxxxx Xxxxxx Inc.
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(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) if to the Company or any Subsidiary Guarantor, initially at
its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
11. Successors. This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of each of the parties,
including, without the need for an express assignment or any consent by the
Company and the Subsidiary Guarantors thereto, subsequent Holders of Securities
and the New Securities. The Company and the Subsidiary Guarantors hereby agree
to extend the benefits of this Agreement to any Holder of Securities and the
New Securities, and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
12. Counterparts. This Agreement may be in signed counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
13. Headings. The headings used herein are for convenience only
and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than in their capacity
as Initial Purchasers) shall be disregarded and deemed not to be outstanding in
determining whether such consent or approval was given by the Holders of such
required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Subsidiary Guarantors and the several Initial
Purchasers.
Very truly yours,
Telecomunicaciones de Puerto Rico, Inc.
by
-------------------------------
Name:
Title:
Puerto Rico Telephone Company, Inc.,
by
-------------------------------
Name:
Title:
Celulares Telefonica, Inc.,
by
-------------------------------
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Barney Inc.
Chase Securities Inc.
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Popular Securities, Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
by
----------------------
Name:
Title:
For themselves and the other several Initial
Purchasers named in Schedule I to
the Purchase Agreement.
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ANNEX A
Each Broker-Dealer that receives New Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in exchange for Securities where such Securities were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration
Date (as defined herein) and ending on the close of business one year after the
Expiration Date, it will make this Prospectus available to any Broker-Dealer
for use in connection with any such resale. See "Plan of Distribution".
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ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange
for Securities, where such Securities were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Securities. See "Plan of Distribution".
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ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 199__, all dealers effecting transactions
in the New Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by brokers-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit
resulting from any such resale of New Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508. S-K 502(b) legend must appear on the back cover.]
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ANNEX D
Rider A
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
--- ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in
a distribution of the New Securities. If the undersigned is a Broker-Dealer
that will receive New Securities for its own account in exchange for
Securities, it represents that the Securities to be exchanged for New
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such New Securities; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act.
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