Exhibit 10.1
XXXXXX COMMUNICATIONS CORPORATION
10-7/8% SENIOR NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
June 22, 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxxx Brothers Inc.
Deutsche Bank Securities Inc.
c/o Banc of America Securities LLC
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx Communications Corporation, an Oklahoma
corporation (the "Company"), proposes to issue and sell (the
"Initial Placement") to Banc of America Securities LLC,
Xxxxxx Brothers Inc. and Deutsche Bank Securities Inc. (the
"Initial Purchasers") upon terms set forth in a purchase
agreement dated as of June 15, 2000 (the "Purchase
Agreement") among the Company and the Initial Purchasers,
$300,000,000 of its 10-7/8% Senior Notes due 2010 (the
"Initial Notes"). As an inducement to you to enter into the
Purchase Agreement and purchase the Initial Notes and in
satisfaction of a condition to your obligations under the
Purchase Agreement, the Company agrees with you for the
benefit of the holders from time to time of the Initial
Notes (including the Initial Purchasers) (each of the
foregoing a "Holder" and together the "Holders"), as
follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in
the Purchase Agreement. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
"Affiliate" of any specified person means 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 means 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" have meanings correlative to the
foregoing.
"Closing Date" has the meaning set forth in the
Purchase Agreement.
"Commission" means the Securities and Exchange
Commission.
"Company" has the meaning set forth in the
preamble hereto.
"Damages Payment Date" means, with respect to the
Initial Notes, each date on which interest is paid in
accordance with the Indenture.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder.
"Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in
exchange for the Notes, a like aggregate principal
amount of Exchange Notes.
"Exchange Offer Registration Period" means the
longer of (A) the period until the consummation of the
Exchange Offer and (B) two years after effectiveness of
the Exchange Offer Registration Statement, exclusive of
any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange
Offer Registration Statement; provided, however, that
in the event that all resales of Exchange Notes
(including, subject to the time periods set forth
herein, any resales by Exchanging Dealers) covered by
such Exchange Offer Registration Statement have been
made, the Exchange Offer Registration Statement need
not remain continuously effective for the period set
forth in clause (B) above.
"Exchange Offer Registration Statement" means a
Registration Statement of the Company on an appropriate
form under the Securities Act with respect to the
Exchange Offer, all 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.
"Exchange Notes" means securities issued by the
Company, identical in all material respects to the
Notes to be issued under the Indenture.
"Exchanging Dealer" means any Holder (which may
include the Initial Purchasers) that is a broker-
dealer, electing to exchange Notes acquired for its own
account as a result of market-making activities or
other trading activities for Exchange Notes.
"Holder" has the meaning set forth in the preamble
hereto.
"Indenture" means the Indenture, dated as of June
22, 2000, between the Company and United States Trust
Company of New York, as trustee, pursuant to which the Notes
are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms
thereof.
"Initial Notes" means the 10-7/8% Senior Notes due
2010, of the same series under the Indenture as the Exchange
Notes, for so long as such securities constitute Transfer
Restricted Securities.
"Initial Placement" has the meaning set forth in
the preamble hereto.
"Initial Purchasers" has the meaning set forth in
the preamble hereto.
"Losses" has the meaning set forth in Section 6(d)
hereto.
"Majority Holders" means the Holders of a majority
of the aggregate principal amount of Notes registered
under a Registration Statement.
"Managing Underwriters" means the investment
banker or investment bankers and manager or managers
that shall administer an underwritten offering under a
Shelf Registration Statement.
"Notes" means the Initial Notes and Exchange
Notes.
"Offering Memorandum" has the meaning set forth in
the Purchase Agreement.
"Prospectus" means 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 Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the
offering of any portion of the Notes covered by such
Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective
amendments.
"Purchase Agreement" has the meaning set forth in
the preamble hereto.
"Registration Default" has the meaning set forth
in Section 5(b) hereof.
"Registration Statement" means any Exchange Offer
Registration Statement or Shelf Registration Statement
pursuant to the provisions of this Agreement,
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 Act" means the Securities Act of 1933,
as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Shelf Registration" means a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set
forth in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Company pursuant to the
provisions of Section 3 hereof, which covers some or
all of the Notes or Exchange Notes, as applicable, on
an appropriate form under Rule 415 under the Securities
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 Prospectus
contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Target Effectiveness Date" has the meaning set
forth in Section 5(b) hereof.
"Transfer Restricted Securities" means each Note
until: (i) the date on which such Note has been
exchanged by a Person other than a broker-dealer for an
Exchange Note in the Exchange Offer; (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
Securities Act and disposed of in accordance with the
Shelf Registration Statement; or (iv) the date on which
such Note is distributed to the public pursuant to Rule
144 under the Securities Act.
"Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended.
"Trustee" means United States Trust Company of New
York and any successors thereto.
"Underwriter" means any underwriter of Notes in
connection with an offering thereof under a Shelf
Registration Statement.
Underwritten Registration or Underwritten
Offering means a registration in which the Notes of the
Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer; Resales of Exchange Notes by Exchanging
Dealers; Private Exchange.
(a) The Company shall prepare and file with the Commission
the Exchange Offer Registration Statement with respect to
the Exchange Offer on or before the 30th calendar day after
the Closing Date. The Company shall use its best efforts
(i) to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or prior to
the 150th calendar day following the Closing Date and remain
effective until the closing of the Exchange Offer and (ii)
to consummate the Exchange Offer on or prior to the 180th
calendar day following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence
the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder electing to exchange Notes for
Exchange Notes (assuming that such Holder (x) is not an
"affiliate" of the Company within the meaning of the
Securities Act, (y) is not a broker-dealer that acquired the
Notes in a transaction other than as a part of its market-
making or other trading activities and (z) if such Holder is
not a broker-dealer, acquires the Exchange Notes in the
ordinary course of such Holder's business, is not
participating in the distribution of the Exchange Notes and
has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) to
resell such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities
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 Exchange Offer, the Company
shall 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, stating, in addition to such other disclosures as
are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Notes not tendered will remain
outstanding and continue to accrue interest, but will not
retain any rights under this Agreement;
(iv) that Holders electing to have Notes exchanged
pursuant to the Exchange Offer will be required to surrender such
Notes, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last day of acceptance
for exchange; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last
day of acceptance for exchange, by sending to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the aggregate principal
amount of Notes delivered for exchange and a statement that
such Holder is withdrawing his election to have such Notes
exchanged; and shall keep the Exchange Offer open for
acceptance for not less than 30 days (or longer if required
by applicable law) after the date notice thereof is mailed
to the Holders; utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York; and comply in all respects with all
applicable laws relating to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Notes equal in principal
amount to the Notes of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge
that, pursuant to interpretations by the staff of the
Commission of Section 5 of the Securities Act, and in the
absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by
such Exchanging Dealer pursuant to the Exchange Offer in
exchange for Notes acquired for its own account as a result
of market-making activities or other trading activities.
Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on
the cover 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 forming a
part of the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered
pursuant to the Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period
for delivery of the prospectus included therein by
Exchanging Dealers in connection with sales of Exchange
Notes received pursuant to the Exchange Offer, as
contemplated by Section 4(h) below; provided, however, that
the Company shall not be required to maintain the
effectiveness of the Exchange Offer Registration Statement
for more than 30 days following the consummation of the
Exchange Offer unless the Company has been notified in
writing on or prior to the 30th day following the
consummation of the Exchange Offer by one or more Exchanging
Dealers that such Holder has received Exchange Notes as to
which it will be required to deliver a prospectus upon
resale.
(f) In the event that an Initial Purchaser determines that
it is not eligible to participate in the Exchange Offer with
respect to the exchange of Notes constituting any portion of
an unsold allotment, upon the effectiveness of the Shelf
Registration Statement as contemplated by Section 3 hereof
and at the request of the Initial Purchasers, the Company
shall issue and deliver to the Initial Purchasers, or to the
party purchasing Initial Notes registered under the Shelf
Registration Statement from the Initial Purchasers, in
exchange for such Initial Notes, a like principal amount of
Exchange Notes. The Company shall use its best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP
number for such Exchange Notes as for Exchange Notes issued
pursuant to the Exchange Offer.
(g) The Company shall use its best efforts to complete the
Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange
Act and other applicable laws and regulations in connection
with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that (i) the Exchange
Offer does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no
action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which
might materially impair the ability of the Company to
proceed with the Exchange Offer, and no material adverse
development shall have occurred in any existing action or
proceeding with respect to the Company and (iii) all
governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation
of the Exchange Offer. The Company shall inform the Initial
Purchasers, upon their request, of the names and addresses
of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to
applicable law, to contact such Holders and otherwise
facilitate the tender of Notes in the Exchange Offer.
(h) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder
of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the consummation thereof, a
written representation to the Company (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. In addition, all such
Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
broker-dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters,
and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Initial Notes
acquired by such Holder directly from the Company.
3. Shelf Registration. If (i) because of 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
Exchange Offer as contemplated by Section 2 hereof, or
(ii) the Company is not required to file the Exchange Offer
Registration Statement for any reason other than those
specified in clause (i) above, or (iii) with respect to any
Holder of Transfer Restricted Securities (A) such Holder is
prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may
not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that
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 an Exchanging Dealer
and holds Initial Notes acquired directly from the Company
or one of its affiliates (it being understood that, for
purposes of this Section 3, (x) the requirement that the
Initial Purchasers deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-
K under the Securities Act in connection with sales of
Exchange Notes acquired in exchange for such Notes shall
result in such Exchange Notes being not "freely tradeable"
and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Notes
acquired in the Exchange Offer in exchange for Notes
acquired as a result of market-making activities or other
trading activities shall not result in such Exchange Notes
being not "freely tradeable"), the following provisions
shall apply:
(a) The Company shall, as promptly as practicable, file
with the Commission a Shelf Registration Statement relating
to the offer and sale of the Notes or the Exchange Notes, as
applicable, by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement and Rule 415
under the Securities Act, provided that, with respect to
Exchange Notes received by the Initial Purchasers in
exchange for Initial Notes constituting any portion of an
unsold allotment, the Company 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 Regulation
S-K Items 507 and/or 508, as applicable, in satisfaction of
its obligations under this paragraph (a) 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.
(b) The Company shall use its best efforts to cause the
Shelf Registration Statement to be declared effective under
the Securities Act on or prior to the 120th calendar day
after the obligation to file a Shelf Registration Statement
under this Section 3 arises and to keep such Shelf
Registration Statement continuously effective in order to
permit the Prospectus contained therein 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 Initial Notes or Exchange Notes, as applicable,
covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such
case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement
effective during the requisite period if the Company
voluntarily takes any action that would result in Holders of
Notes covered thereby not being able to offer and sell such
Notes during that period, unless (i) such action is required
by applicable law, (ii) the Company complies with this
Agreement or (iii) such action is taken by the Company or
any Guarantors in good faith and for valid business reasons
(not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of
assets, so long as the Company promptly thereafter complies
with the requirements of Section 4(m) hereof, if applicable.
4. 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, within a reasonable time prior to
the filing of any Registration Statement, any Prospectus,
any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers
and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel, upon their
request) and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration
Statement, the Majority Holders or their counsel) available
for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a
Registration Statement or a Prospectus or any document which
is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers
and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the
Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders or their counsel)
shall object, except for any amendment or supplement or
document (a copy of which has been previously furnished to
the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, the Majority Holders and
their counsel, upon their request)) which counsel to the
Company shall advise the Company, in the form of a written
opinion, is required in order to comply with applicable law;
the Initial Purchasers agree that, if it receives timely
notice and drafts under this clause (a), it will not take
actions or make objections pursuant to this clause (a) such
that the Company is unable to comply with its obligations
under Section 2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus contained therein and any amendment or
supplement thereto complies in all material respects with
the Securities 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
(iii) any Prospectus forming part of any Registration
Statement, including 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 light of the
circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the
Holders of Initial Notes covered thereby, and, if requested
by the Initial Purchasers or any such Holder, confirm such
advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the
Exchange Offer Registration Period, as applicable, the
Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of
Initial Notes or Exchange Notes covered thereby, and,
in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in
writing to the Company a telephone or facsimile number
and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) 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;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Initial Notes or Exchange
Notes included therein for sale in any
jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the happening of any event that
requires the making of any changes in the
Registration Statement or the Prospectus so that,
as of such date, the Registration Statement or the
Prospectus does not include an untrue statement of
a material fact or omit to state a material fact
necessary to make the statements therein (in the
case of the Prospectus, in light of the
circumstances under which they were made) not
misleading (which advice shall be accompanied by
an instruction to suspend the use of the
Prospectus until the requisite changes have been
made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes
covered by any Shelf Registration Statement that so
requests, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all exhibits thereto.
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Notes 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; and the Company consents to the use of
the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Notes in connection with the
offering and sale of the Notes covered by the Prospectus or
any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer
that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules, any documents incorporated by reference therein
and, if the Exchanging Dealer so requests in writing, all
exhibits thereto.
(h) The Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging
Dealer, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and
any amendment or supplement thereto as such Exchanging
Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange
Notes received by it pursuant to the Exchange Offer; and the
Company consents to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging
Dealer, as provided in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by
its acquisition of such Notes or Exchange Notes to be sold
by such Exchange Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the
happening of any event of the kind described in paragraph
(c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this Section 4,
such Holder will forthwith discontinue disposition of such
Notes covered by such Registration Statement or Prospectus
or Exchange Notes to be sold by such Holder or Exchange
Dealer, as the case may be, until such Holder's or Exchange
Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(l) hereof, or
until it is advised in writing by the Company that the use
of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
In the event that the Company shall give any such notice,
the Exchange Offer Registration Period shall be extended by
the number of days during such periods from and including
the date of the giving of such notice to and including the
date when each seller of the Exchange Notes covered by such
Registration Statement or Exchange Notes to be sold by such
Exchange Dealer, as the case may be, shall have received (x)
the copies of the supplemented or amended Prospectus
contemplated by Section 4(l) hereof or (y) the advice in
writing.
(j) Prior to the Exchange Offer or any other offering of
Initial Notes or Exchange Notes pursuant to any Registration
Statement, the Company shall register or qualify or
cooperate with the Holders of Notes included therein and
their respective counsel in connection with the registration
or qualification of such Initial Notes or Exchange Notes for
offer and sale under the securities or blue sky laws of such
states as any such Holders reasonably request in writing and
do any and all other acts or things necessary or advisable
to enable the offer and sale in such states of the Notes
covered by such Registration Statement; provided, however,
that the Company will not be required to qualify as a
foreign corporation or as a dealer in securities in any
jurisdiction in which it is not then so qualified, to file
any general consent to service of process or to take any
action that would subject it to general service of process
in any such jurisdiction where it is not then so subject or
to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
(k) The Company shall issue, upon the request of any Holder
of Initial Notes covered by the Shelf Registration
Statement, Exchange Notes, having an aggregate principal
amount equal to the aggregate principal amount of Initial
Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes
to be registered in the name of such Holder or in the name
of the purchaser(s) of such Exchange Notes, as the case may
be; in return, the Initial Notes held by such Holder shall
be surrendered to the Company for cancellation.
(l) The Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of
certificates representing Initial Notes or Exchange Notes to
be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations of $1,000 or an
integral multiple thereof and registered in such names as
Holders may request prior to sales of Initial Notes or
Exchange Notes pursuant to such Registration Statement.
(m) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) of this Section 4, the Company shall
promptly prepare and file a post-effective amendment to any
Registration Statement or an amendment or supplement to the
related Prospectus or any other required document so that,
as thereafter delivered to purchasers of the Initial Notes
or Exchange Notes included therein, the Prospectus will not
include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading and, in the case of a Shelf
Registration Statement, notify the Holders to suspend use of
the Prospectus as promptly as practicable after the
occurrence of such an event. Notwithstanding the foregoing,
the Company shall not be required to amend or supplement a
Shelf Registration Statement, any related Prospectus or any
document incorporated therein by reference, for a period not
to exceed an aggregate of 30 days in any calendar year, if
the Company determines in its good faith judgment that the
disclosure of such event at such time would have a material
adverse effect on the business, operations, or prospects of
the Company or the disclosure otherwise related to a pending
material business transaction that has not yet been publicly
disclosed.
(n) Not later than the effective date of any such
Registration Statement hereunder, the Company shall provide
a CUSIP number for the Initial Notes or Exchange Notes, as
the case may be, registered under such Registration
Statement, and provide the Trustee with certificates for
such Initial Notes or Exchange Notes, in a form eligible for
deposit with The Depository Trust Company.
(o) The Company shall use its best efforts to comply with
all applicable rules and regulations of the Commission and
shall make generally available to its security holders as
soon as practicable after the effective date of the
applicable Registration Statement an earnings statement
meeting the requirements of Rule 158 under the Securities
Act.
(p) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act 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 of Initial Notes or Exchange Notes
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 Trust Indenture Act; and to execute and use its
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.
(q) The Company may require each Holder of Notes to be sold
pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the
distribution of such Initial Notes as the Company may from
time to time reasonably require for inclusion in such
Registration Statement.
(r) The Company shall, if requested, promptly incorporate
in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the
Managing Underwriters, if any, and Majority Holders
reasonably agree should be included therein, and shall make
all required filings of such Prospectus supplement or post-
effective amendment promptly upon notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(s) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate
actions in order to expedite or to facilitate the
registration or the disposition of any Initial Notes
included therein, and in connection therewith, if an
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
and the Managing Underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 6.
(t) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the
Holders of Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant 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 any of
its subsidiaries;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by
the Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as
is customary for similar due diligence examinations and make
such representatives of the Company as shall be reasonably
requested by the Initial Purchasers or Managing
Underwriters, if any, available for discussion of any such
Registration Statement; provided, however, that any non-
public 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
other than as a result of a disclosure of such information
by any such Holder, underwriter, attorney, accountant or
agent;
(iii) make such representations and warranties to the
Holders of Notes registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(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 similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(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), addressed to the
underwriters, if any, and use reasonable efforts to have
such letter addressed to the selling Holders of Notes
registered thereunder (to the extent consistent with
Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (AICPA) ("SAS
72")), in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection
with similar underwritten offerings, or if the provision of
such "cold comfort" letters is not permitted by SAS 72 or if
requested by the Initial Purchasers or their counsel in lieu
of a "cold comfort" letter, an agreed-upon procedures letter
under Statement on Auditing Standards No. 75 of the AICPA,
covering matters requested by the Initial Purchasers or
their counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, and customarily delivered in
similar offerings, including those to evidence compliance
with Section 4(m) and with any conditions contained in the
underwriting agreement or other agreement entered into by
the Company.
The foregoing actions set forth in clauses (iii),
(iv), (v) and (vi) of this Section 4(t) shall be
performed at (A) the effectiveness of such Shelf
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.
(u) The Company shall, in the case of a Shelf Registration,
use their best efforts to cause all Notes to be listed on
any securities exchange or any automated quotation system on
which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent
such Notes satisfy applicable listing requirements.
5. Registration Expenses; Remedies.
(a) The Company shall bear all expenses incurred in
connection with the performance of its obligations under
Sections 2, 3 and 4 hereof, including without limitation:
(i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky
qualification of any of the Exchange Notes or Initial
Notes), (iii) all expenses of any persons in preparing or
assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents
relating to the performance of and compliance with this
Agreement, (iv) the fees and disbursements of the Trustee
and its counsel, (v) the fees and disbursements of counsel
for the Company and, in the case of a Shelf Registration
Statement, the fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the
Initial Purchasers) and in the case of any Exchange Offer
Registration Statement, the fees and expenses of counsel to
the Initial Purchasers acting in connection therewith and
(vi) the fees and disbursements of the independent public
accountants of the Company, American Cellular Corporation
and Sygnet Wireless, Inc., including the expenses of any
special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding
fees and expenses of counsel to the underwriters (other than
fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition
of Notes by a Holder.
(b) In the event that the Company:
(i) fails to file the Exchange Offer Registration Statement
or Shelf Registration Statement, as the case may be, on or
before the date specified for either such filing;
(ii) either such registration statement is not declared
effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target
Date");
(iii) the Company fails to consummate the Exchange Offer
within 30 days of the Effectiveness Target Date with respect
to the Exchange Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter
ceases to be effective or usable in connection with the
resales of Transfer Restricted Securities during the periods
specified in this Registration Rights Agreement (each such
event referred to in clauses (i) through (iv) above, a
"Registration Default"),
then the Company will pay liquidated damages
("Liquidated Damages") to each holder of Initial Notes
or Exchange Notes, with respect to the first 90-day
period immediately following the occurrence of the
first Registration Default in an amount equal to $0.05
per week per $1,000 principal amount of Initial Notes
or Exchange Notes held by that holder. The amount of
the Liquidated Damages will increase by an additional
$0.05 per week per $1,000 principal amount of Initial
Notes or Exchange Notes 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 $0.50 per week per $1,000
principal amount of Initial Notes or Exchange Notes.
(c) The Company shall pay all accrued Liquidated Damages on
each Damages Payment Date to the Global Note Holder by wire
transfer of immediately available funds and to holders of
Certificate Notes by wire transfer to the accounts specified
by them or by mailing checks to their registered addresses
if no such accounts have been specified.
(d) Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that
any failure by the Company to comply with its obligations
under Sections 2 and 3 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
obligations under Sections 2 and 3 hereof.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the
Company agrees to indemnify and hold harmless each Holder of
Notes covered thereby (including the Initial Purchasers and,
with respect to any Prospectus delivery as contemplated by
Sections 2(e) and 4(h) hereof, each Exchanging Dealer) the
directors, officers, employees and agents of such Holder and
each person who controls such Holder within the meaning of
either the Securities 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 Securities 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 such Registration
Statement as originally filed or in any amendment thereof,
or in any preliminary Prospectus or 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 the case of the
Prospectus, in light of the circumstances under which they
were 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 defending any such loss, claim, damage or
liability (or action in respect thereof); provided, however,
that the Company 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 indemnified party specifically for inclusion therein;
provided further, however, that the Company will not be
liable in any case with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
preliminary Prospectus or Prospectus, or in any amendment
thereof or supplement thereto to the extent that any such
loss, claim, damage or liability (or action in respect
thereof) resulted from the fact that any indemnified party
sold Notes or Exchange Notes to a person to whom there was
not sent or given, at or prior to the written confirmation
of such sale, a copy of the Prospectus as then amended or
supplemented, if the Company had previously complied with
the provisions of Section 4(c)(2) and 4(f) or 4(h) hereof
and if the untrue statement contained in or omission from
such preliminary Prospectus or Prospectus was corrected in
the Prospectus as then amended or supplemented. This
indemnity agreement will be in addition to any liability
that the Company may otherwise have.
The Company also agrees to indemnify or contribute
to Losses of, as provided in Section 6(d) hereof, any
underwriters of Notes registered under a Shelf
Registration Statement, their employees, officers,
directors and agents and each person who controls such
underwriters on 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(s) hereof.
(b) Each Holder of Notes covered by a Registration
Statement (including the Initial Purchasers and, with
respect to any Prospectus delivery as contemplated by
Sections 2(e) and 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless (i) the
Company, (ii) each of the directors of the Company,
(iii) each of the officers of the Company who signs such
Registration Statement and (iv) each Person who controls the
Company within the meaning of either the Securities Act or
the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only
with respect to written information furnished to the Company
by or on behalf of such Holder specifically for inclusion in
the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability
that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 6 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 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve the indemnifying
party 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 (including local 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 reasonably 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
(and local 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 that 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. It is understood that the indemnifying party shall
not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that
all such fees and expenses shall be reimbursed as they are
incurred. 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 6 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall 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 the 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 that
resulted in such Losses; provided, however, that in no case
shall the Initial Purchasers or any subsequent Holder of any
Security or Exchange 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
an Exchange Note, applicable to the Security that was
exchangeable into such Exchange 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 Notes
purchased by such underwriter under the Registration
Statement that 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 that resulted in
such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the
Initial Placement (before deducting expenses) as set forth
on the cover page of the Final Memorandum. 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 Notes or Exchange Notes, as
applicable, registered under the Securities 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 that resulted in such Losses.
Relative fault shall be determined by reference to 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
parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any
other method of allocation that did 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this
Section 6, each person who controls a Holder within the
meaning of either the Securities 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 Securities 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 6 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
officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of
Notes covered by a Registration Statement.
7. Rule 144A
The Company hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial
owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such
Transfer Restricted Securities from such Holder or
beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit
resales of such Transfer Restricted Securities pursuant to
Rule 144A.
8. Participation In Underwritten Registrations
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell
such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms
of such underwriting arrangements.
9. Selection Of Underwriters
The Holders of Transfer Restricted Securities
covered by the Shelf Registration Statement who desire to do
so may sell such Transfer Restricted Securities in an
Underwritten Offering. In any such Underwritten Offering,
the investment banker or investment bankers and manager or
managers that will administer the offering will be selected
by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in such
offering; provided, that such investment bankers and
managers must be reasonably satisfactory to the Company.
10. Miscellaneous.
(a) No Inconsistent Agreement. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement that conflicts with
the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) 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 Notes (or,
after the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Notes); provided that,
with respect to any matter that directly or indirectly
affects the rights of the Initial Purchasers hereunder, the
Company shall obtain the written consent of the Initial
Purchasers. 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 Initial Notes or
Exchange Notes 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 Notes being sold rather
than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail, telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions
of this Section 7(c), which address initially is, with
respect to each Holder, the address of such Holder
maintained by the Trustee, with a copy in like manner to
Banc of America Securities LLC.;
(ii) if to the Initial Purchasers, at Banc of America
Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx XxXxxx, with a copy to
Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx; and
(iii) if to the Company, Xxxxxx Communications
Corporation, 00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxx, with a copy to McAfee & Xxxx A Professional
Corporation, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx,
Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxx.
All such notices and communications shall be
deemed to have been duly given when received. The
Initial Purchasers, on the one hand, or the Company, on
the other, by notice to the other party or parties may
designate additional or different addresses for
subsequent notices or communications.
(d) 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 the need
for an express assignment or any consent by the Company
thereto, subsequent Holders of Initial Notes and/or Exchange
Notes. The Company hereby agrees to extend the benefits of
this Agreement to any Holder of Initial Notes and/or
Exchange Notes and any such Holder may specifically enforce
the provisions of this Agreement as if an original party
hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(h) Severability. In the event that any one or 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.
(i) Initial Notes Held by the Company, Etc. Whenever the
consent or approval of Holders of a specified percentage of
the aggregate principal amount of Initial Notes or Exchange
Notes is required hereunder, Initial Notes or Exchange
Notes, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Initial Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Initial Notes or
Exchange Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets
forth the agreement between the Company and you.
Very truly yours,
XXXXXX COMMUNICATIONS
CORPORATION
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
The foregoing Agreement is hereby
accepted as of the date first above written.
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes
for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. 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 Exchange Notes received
in exchange for Notes where such Notes 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."
ANNEX B
Each broker-dealer that receives Exchange Notes
for its own account in exchange for Notes, where such Notes
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 Exchange Notes. See "Plan of
Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes
for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. 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
Exchange Notes received in exchange for Notes where such
Notes 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 such date all dealers effecting
transactions in the Exchange Notes may be required to
deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will
receive Exchange Notes for its own account in exchange for
Notes, it represents that the Notes to be exchanged for the
Exchange Notes 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 Exchange Notes; 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.
