Exhibit 4.5
JOINDER TO THE REGISTRATION RIGHTS AGREEMENT
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February 10, 2005
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated January 6, 2005 among IWO Escrow Company,
a Delaware corporation (the "Company"), Bear, Xxxxxxx & Co. Inc., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated
(collectively, the "Initial Purchasers") concerning the purchase of the
Securities (as defined in the Registration Rights Agreement) from the Company by
the Initial Purchasers. Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Registration Rights
Agreement.
IWO Holdings, Inc. ("Holdings"), the Company's successor by reason of
the Merger (as defined in the Purchase Agreement), and each of the Guarantors
party hereto (the "Guarantors") agree that this letter agreement is being
executed and delivered in connection with the issue and sale of the Securities
by the Company pursuant to the Purchase Agreement.
1. Joinder. Each of the parties hereto hereby agrees to
become bound by the terms, conditions and other provisions of the Registration
Rights Agreement with all attendant rights, duties and obligations stated
therein, with the same force and effect as if originally named therein as the
Issuer, in the case of IWO Holdings, Inc., and as a Guarantor, in the case of
the Guarantors, as if such party executed the Registration Rights Agreement on
the date thereof.
2. GOVERNING LAW. THIS LETTER AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3. Counterparts. This letter agreement may be executed in
one or more counterparts (which may include counterparts delivered by
telecopier) and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
4. Amendments. No amendment or waiver of any provision of
this letter agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the parties hereto.
5. Headings. The headings herein are inserted for the
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this letter agreement.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us a counterpart hereof, whereupon
this letter agreement will become a binding agreement between Holdings, the
Guarantors party hereto and the Initial Purchasers in accordance with its terms.
Very truly yours,
IWO HOLDINGS, INC., as Issuer
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
INDEPENDENT WIRELESS ONE CORPORATION,
as Guarantor
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
INDEPENDENT WIRELESS ONE LEASED REALTY
CORPORATION, as Guarantor
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
Acknowledged as of the date first written above:
BEAR XXXXXXX & CO. INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Managing Director
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX
AND XXXXX, INCORPORATED
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
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______________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 6, 2005
BY AND AMONG
IWO ESCROW COMPANY
AND
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX AND XXXXX INCORPORATED
______________________________________________________________________________
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 6, 2005, by and among IWO ESCROW COMPANY, a Delaware
corporation (the "COMPANY") and BEAR, XXXXXXX & CO. INC., XXXXXX BROTHERS INC.
and XXXXXXX LYNCH, PIERCE, XXXXXX AND XXXXX INCORPORATED (each an "INITIAL
PURCHASER" and collectively, the "INITIAL PURCHASERS"), each of whom has agreed
to purchase the Company's Senior Secured Floating Rate Notes due 2012 (the
"SENIOR NOTES") and the Company's 10.75% Senior Discount Notes due 2015 (the
"SENIOR DISCOUNT NOTES" and, together with the Senior Notes, the "INITIAL
Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 14, 2004, (the "PURCHASE AGREEMENT"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Initial Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 9 of
the Purchase Agreement. The Senior Notes will be issued pursuant to an
indenture, dated January 6, 2005 and the Senior Discount Notes will be issued
pursuant to a separate indenture, dated January 6, 2005 (each such indenture an
"INDENTURE," and together, the "INDENTURES"), each between the Company and U.S.
Bank National Association as trustee (the "TRUSTEE"). Capitalized terms used
herein and not otherwise defined shall have the meaning assigned to them in the
Indentures.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York are authorized by law,
regulation or executive order to remain closed.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of the continuous effectiveness of such Exchange Offer Registration
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Statement and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's Senior Secured Floating Rate Notes due
2012 and the Company's 10.75% Senior Discount Notes due 2015 to be issued
pursuant to the Indentures: (i) in the Exchange Offer or (ii) as contemplated by
Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Initial Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
FILING DEADLINE: As defined in Section 3(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement, (ii) including the
Prospectus included therein and (iii) including all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
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SHELF EFFECTIVENESS DEADLINE: As defined in Section 4(a) hereof.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSACTION-RELATED SUSPENSION NOTICE: As defined in Section 6(d)
hereof.
TRANSFER RESTRICTED SECURITIES: Each Initial Note until the earliest
to occur of (a) the date on which such Initial Note has been exchanged in the
Exchange Offer by a Person other than a Broker-Dealer for an Exchange Note which
is entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) following the exchange
by a Broker-Dealer in the Exchange Offer of an Initial 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, (c) the date
on which such Initial Note has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Notes), or (d) the date on which
such Initial Note may be distributed to the public pursuant to Rule 144.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company and the Guarantors shall (i) cause
the Exchange Offer Registration Statement to be filed with the Commission by the
date that is on or prior to the later of 120 days after the Closing Date and 45
days after the consummation of the Reorganization (as that term is defined in
the Purchase Agreement, and such later date being herein referred to as the
"FILING DEADLINE"), (ii) cause such Exchange Offer Registration Statement to
become effective by the date that is on or prior to the later of 210 days after
the Closing Date and 135 days after the consummation of the Reorganization (such
later date being herein referred to as the "EFFECTIVENESS DEADLINE"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
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(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Exchange Notes to be offered
in exchange for the Initial Notes that are Transfer Restricted Securities and
(ii) resales of Exchange Notes by Broker-Dealers that tendered into the Exchange
Offer Initial Notes that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use all commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Notes shall be
included in the Exchange Offer Registration Statement. The Company and the
Guarantors shall use all commercially reasonable efforts to cause the Exchange
Offer to be Consummated no later than 30 Business Days, or longer, if required
by the federal securities laws, after the date on which the Exchange Offer
Registration Statement has become effective, (such 30th day, or such later date
required by the federal securities laws, being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Company or any Affiliate of the Company) may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a prospectus meeting
the requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Exchange Notes by Broker-Dealers, the Company and the Guarantors agree to use
all commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
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Statement have been sold pursuant thereto. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not
(A) required to file the Exchange Offer Registration Statement or (B) permitted
to Consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the Company and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) below) or (ii) any
Holder of Transfer Restricted Securities shall notify the Company prior to 20
Business Days following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Initial Notes acquired directly from the Company or any
of its Affiliates, then the Company and the Guarantors shall:
(x) use all commercially reasonable efforts on or prior to the later
of (i) the Filing Date for the Exchange Offer Registration Statement and (ii) 30
days after the earlier of (A) the date as of which the Company determines that
the Exchange Offer Registration Statement will not be or cannot be, as the case
may be, filed as a result of clause (a)(i) above and (B) the date on which the
Company receives the notice specified in clause (a)(ii) above (such later date,
the "SHELF FILING DEADLINE"), to file a shelf registration statement pursuant to
Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to all
Transfer Restricted Securities, and
(y) use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 60 days after the
Shelf Filing Deadline for the Shelf Registration Statement (such 60th day the
"EFFECTIVENESS DEADLINE").
If, after the Company and the Guarantors have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a) above,
the Company and the Guarantors are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under
applicable federal law (i.e. clause (a)(i)(B) above), then the filing of the
Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such event, the Company and
the Guarantors shall remain obligated to meet the Effectiveness Deadline set
forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use all commercially reasonable
efforts to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(b) and (c) hereof and in conformity with
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the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(d)) following the Closing
Date, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto or otherwise cease to be Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 15 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act, and any other information as may be otherwise required by law, for use
in connection with any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information by such deadline. Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or usable for its
intended purpose during the periods such Registration Statement is required to
be effective or usable (each such event referred to in clauses (i) through (iv),
a "REGISTRATION DEFAULT"), then the Company and the Guarantors hereby jointly
and severally agree to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to $0.05 per week per
$1,000 on the principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default continues
for the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the liquidated damages shall increase by an
additional $0.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $0.50
per week per $1,000 in principal amount of Transfer Restricted Securities.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
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All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indentures,
on each Interest Payment Date, as more fully set forth in the Indentures and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Company and the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall (x) comply with all
applicable provisions of Section 6(c) below, (y) use all commercially reasonable
efforts to effect such exchange and to permit the resale of Exchange Notes by
Broker-Dealers that tendered in the Exchange Offer Initial Notes that such
Broker-Dealer acquired for its own account as a result of its market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (z) comply with
all of the following provisions:
(i) If, following the date hereof there has been announced
a change in Commission policy with respect to exchange offers such as
the Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek a no-action letter or other favorable
decision from the Commission allowing the Company and the Guarantors
to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company and the Guarantors hereby agree to use their
best efforts to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company
and the Guarantors hereby agree to use all commercially reasonable
efforts to take all such other actions as may be requested by the
Commission or otherwise required in connection with the issuance of
such decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (C) it is
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acquiring the Exchange Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer each Holder
using the Exchange Offer to participate in a distribution of the
Exchange Notes shall acknowledge and agree that, if the resales are
of Exchange Notes obtained by such Holder in exchange for Initial
Notes acquired directly from the Company or an Affiliate thereof, it
(1) could not, under Commission policy as in effect on the date of
this Agreement, rely on the position of the Commission enunciated in
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 (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Act in connection with a secondary resale transaction and that
such a secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide
a supplemental letter to the Commission (A) stating that the Company
and the Guarantors are registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including
a representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer
and that, to the best of the Company's and each Guarantor's
information and belief, each Holder participating in the Exchange
Offer is acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offer and (C) any other undertaking or representation
required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) below
and use all commercially reasonable efforts to effect such
registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto
the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on
any appropriate form under the Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof within the time
periods and otherwise in accordance with the provisions hereof; and
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(ii) issue, upon the request of any Holder or purchaser of
Initial Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Notes having an aggregate
principal amount at maturity equal to the aggregate principal amount
at maturity of Initial Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Company for cancellation; the
Company shall register Exchange Notes on the Shelf Registration
Statement for this purpose and issue the Exchange Notes to the
purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Company and the
Guarantors shall:
(i) use all commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Section 3
or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement (A) to contain
an untrue statement of material fact or omit to state any material
fact necessary to make the statements therein not misleading or (B)
not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, or the
Prospectus contained in such Registration Statement (A) to contain an
untrue statement of 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, or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company
and the Guarantors shall file promptly an appropriate amendment to
such Registration Statement curing such defect, and, if Commission
review is required, use all commercially reasonable efforts to cause
such amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period set forth in Section 3 or Section
4 hereof, as the case may be; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise promptly (x) each Holder of Transfer
Restricted Securities included in any Shelf Registration Statement
(each, a "SHELF HOLDER") and (y) each Holder that is a Broker-Dealer
that tendered into the Exchange Offer Initial Notes acquired by such
Broker-Dealer for its own account as a result of market-making
activities or other trading activities, and, if requested by any such
Holder, confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
10
or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes
and (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or
that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company and the Guarantors shall use commercially
reasonable efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) furnish to each Shelf Holder in connection with such registration
or sale, if any, before filing with the Commission, copies of any Shelf
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such Shelf
Registration Statement), which documents will be subject to the review and
comment of such Shelf Holders in connection with such sale, if any, for a period
of at least three Business Days, and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to any such
Shelf Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Shelf Holders shall reasonably object
within three Business Days after the receipt thereof. A Shelf Holder shall be
deemed to have reasonably objected to such filing if such Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or fails to comply with the applicable requirements of
the Act;
11
(vi) promptly, prior to the filing of any document that is to be
incorporated by reference into a Shelf Registration Statement or Prospectus in
connection with such registration or sale, if any, provide copies of such
document to each Shelf Holder, make the Company's and the Guarantors'
representatives available for discussion of such document and other customary
due diligence matters, and include such information in such document prior to
the filing thereof as such Shelf Holders may reasonably request;
(vii) make available, upon reasonable request (including confidential
treatment of nonpublic information), for inspection by each Shelf Holder and any
attorney or accountant retained by any of the Shelf Holders, all financial and
other records and pertinent corporate documents of the Company and the
Guarantors and cause the Company's and the Guarantors' officers, directors and
employees to supply all information reasonably requested by any such Shelf
Holder, attorney or accountant in connection with such Shelf Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) if requested by any Holders in connection with such exchange,
registration or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with respect to
the principal amount of Transfer Restricted Securities being sold, the purchase
price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered thereby;
(x) upon request, furnish to each Shelf Holder in connection with
such exchange, registration or sale, without charge, at least one copy of the
Shelf Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(xi) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent to the use (in accordance with law) of the Prospectus
and any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
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(xii) upon the request of any Shelf Holder, enter into such
agreements (including underwriting agreements) and make such reasonable and
customary representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Shelf Registration Statement
contemplated by this Agreement as may be reasonably requested by any Shelf
Holder in connection with any sale or resale pursuant to any Shelf Registration
Statement. In such connection, the Company and the Guarantors shall:
(A) upon request of any Shelf Holder who is a
Broker-Dealer or who is otherwise required, under applicable law or
Commission policy, to deliver a prospectus in connection with an
Exchange Offer Registration Statement or any Holder whose Transfer
Restricted Securities are included in a Shelf Registration Statement,
furnish (or in the case of paragraphs (2) and (3), use all of their
respective commercially reasonable efforts to cause to be furnished)
to each such Shelf Holder, upon Consummation of the Exchange Offer or
upon the effectiveness of the Shelf Registration Statement, as the
case may be:
(1) a certificate, dated such date, signed on
behalf of the Company and each Guarantor by (x) the
President or any Vice President and (y) a principal
financial or accounting officer of the Company and such
Guarantor, confirming, as of the date thereof, such
matters as such Holders may reasonably request;
(2) an opinion, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company and the Guarantors covering
matters similar to those set forth in Exhibits B, C and D
to the Purchase Agreement and such other matters as such
Holder may reasonably request in light of the then
existing circumstances, and in any event including a
statement to the effect that such counsel has participated
in conferences with officers and other representatives of
the Company and the Guarantors, representatives of the
independent public accountants for the Company, the
Guarantors and any underwriters and has considered the
matters required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives
of the Company and the Guarantors and without independent
check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the
Shelf Registration Statement, at the time such Shelf
Registration Statement or any post-effective amendment
thereto became effective and, in the case of the Exchange
Offer Registration Statement, as of the date of
Consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
13
to make the statements therein, not misleading or that the
Prospectus contained in such Shelf Registration Statement
as of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the date
of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel
may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data
included in any Shelf Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date
of Consummation of the Exchange Offer, or as of the date
of effectiveness of the Shelf Registration Statement, as
the case may be, from the Company's independent
accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings of
debt securities similar to the Notes, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 9(k) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may
be reasonably requested by the selling Shelf Holders to evidence
compliance with the matters covered in clause (A) above and with any
customary conditions contained in any agreement entered into by the
Company and the Guarantors pursuant to this clause (xii);
(xiii) prior to any public offering of Transfer Restricted Securities
pursuant to a Shelf Registration Statement, cooperate with the Shelf Holders and
their counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as such Shelf Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor any Guarantor shall be required
to register or qualify as a foreign entity where it is not now so qualified or
to take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the Shelf
Registration Statement, in any jurisdiction where it is not now so subject;
(xiv) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as such selling
Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
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(xv) use all commercially reasonable efforts to cause the disposition
of the Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xiii) above;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Trustee under each of the
Indentures with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust Company;
(xvii) otherwise use all commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable Registration
Statement, as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 under the Act (which need not be audited) covering a
twelve-month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the Act);
(xviii) cause each of the Indentures to be qualified under the TIA
not later than the effective date of the first Registration Statement required
by this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to each of the Indentures as may be required
for each such Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use all of their respective commercially reasonable 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; and
(xix) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
15
was current at the time of receipt of the Suspension Notice. Furthermore, the
Company and the Guarantors may allow the Shelf Registration Statement and the
related Prospectus to cease to become effective and usable if the Company is in
possession of material non-public information relating to a proposed financing,
recapitalization, acquisition, business combination or other material
transaction involving the Company or the Guarantors which the board of directors
of the Company determines in good faith would require disclosure in the Shelf
Registration Statement by the Company of such material non-public information
for which the Company has a bona fide business purpose for not disclosing and
disclosure of such information is not otherwise required by law; provided (i)
that the Company notifies the Holders within two business days after such board
of directors makes such decision (a "TRANSACTION-RELATED SUSPENSION NOTICE") and
(ii) that the number of days during which such Registration Statement was not
effective or usable pursuant to the foregoing provisions shall last no longer
than 30 days in any three-month period or 90 days in any 12-month period. The
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date of
delivery of the Suspension Notice or Transaction-Related Suspension Notice, as
applicable, to the date of delivery of the Recommencement Date; however, no such
extension shall be taken into account in determining whether liquidated damages
are due pursuant to Section 5 hereof or the amount of such liquidated damages,
it being agreed that the Company's option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration Default
for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company, the Guarantors and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application
and filing fees in connection with listing the Exchange Notes on a national
securities exchange or automated quotation system pursuant to the requirements
thereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company and the Guarantors will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities who are tendering
Initial Notes in the Exchange Offer and/or selling or reselling Initial Notes or
Exchange Notes pursuant to the "Plan of Distribution" contained in the Exchange
16
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements of not more than one counsel, who
shall be Xxxxxx & Xxxxxxx, LLP unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Shelf Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except (i) insofar as such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that is based upon information relating to
any of the Holders furnished in writing to the Company by any of the Holders,
and (ii) the foregoing indemnity shall not inure to the benefit of any Holder
who received a Suspension Notice or Transaction Suspension Notice and used the
prospectus subject to the suspension period in connection with the offer or sale
of any Securities during the suspension period.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors,
and their respective directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, or the Guarantors to the same extent as the foregoing
indemnity from the Company and the Guarantors set forth in section (a) above,
but only with reference to information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
17
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company and Guarantors, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than twenty Business Days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Holders, on the other hand, from their
sale of Transfer Restricted Securities or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as
18
is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the Guarantors, on
the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one
hand, and of the Holder, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Guarantor, on the one hand, or by
the Holder, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section
8(a), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder agree that it would not
be just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no
Holder, its directors, its officers or any Person, if any, who controls such
Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total received by such Holder with respect to the
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company or such Guarantor (i) is not subject to Section 13 or 15(d)
of the Exchange Act, to make available, upon request of any Holder, to such
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Act, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
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SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree
that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into, or is
currently a party to, any agreement granting any registration rights with
respect to its securities to any Person that would require such securities to be
included in any Registration Statement filed hereunder. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's and the Guarantors'
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
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(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under each of the Indentures, with a copy to
the Registrar under each of the Indentures; and
(ii) if to the Company or the Guarantors:
IWO Escrow Company
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxx Xxxxx Rifkind Xxxxxxx and Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in each of the Indentures.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or any of the
Indentures. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
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(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Joinder. Upon the consummation of the Reorganization (as defined
in the Purchase Agreement), the Company shall cause any of its subsidiaries that
is required to be a Guarantor under the Indentures and IWO Holdings, Inc., and
any of its subsidiaries that is required to be a Guarantor under the Indentures,
to become a party to this Agreement by executing and delivering a joinder
agreement to this Agreement in the form attached hereto as Exhibit A.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
IWO ESCROW COMPANY
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
XXXXXX BROTHERS INC.
By: /s/Xxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Mandar Donde
----------------------------------
Name: Mandar Donde
Title: Vice President
[Signature Page to Registration Rights Agreement]
EXHIBIT A
JOINDER TO THE REGISTRATION RIGHTS AGREEMENT
--------------------------------------------
[DATE]
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated January 6, 2005 among IWO Escrow Company,
a Delaware corporation (the "Company"), Bear, Xxxxxxx & Co. Inc., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated
(collectively, the "Initial Purchasers") concerning the purchase of the
Securities (as defined in the Registration Rights Agreement) from the Company by
the Initial Purchasers. Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Registration Rights
Agreement.
IWO Holdings, Inc. ("Holdings"), the Company's successor by reason of
the Merger (as defined in the Purchase Agreement), and each of the Guarantors
party hereto (the "Guarantors") agree that this letter agreement is being
executed and delivered in connection with the issue and sale of the Securities
by the Company pursuant to the Purchase Agreement.
1. Joinder. Each of the parties hereto hereby agrees to become
bound by the terms, conditions and other provisions of the Registration Rights
Agreement with all attendant rights, duties and obligations stated therein, with
the same force and effect as if originally named therein as the Issuer, in the
case of IWO Holdings, Inc., and as a Guarantor, in the case of the Guarantors,
as if such party executed the Registration Rights Agreement on the date thereof.
2. GOVERNING LAW. THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3. Counterparts. This letter agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
4. Amendments. No amendment or waiver of any provision of this
letter agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
5. Headings. The headings herein are inserted for the
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this letter agreement.
[Registration Rights Agreement]
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
letter agreement will become a binding agreement between Holdings, the
Guarantors party hereto and the Initial Purchasers in accordance with its terms.
Very truly yours,
IWO HOLDINGS, INC., as Issuer
By:
-----------------------------------
Name:
Title:
INDEPENDENT WIRELESS ONE CORPORATION,
as Guarantor
By:
-----------------------------------
Name:
Title:
INDEPENDENT WIRELESS ONE LEASED REALTY
CORPORATION, as Guarantor
By:
-----------------------------------
Name:
Title:
Acknowledged as of the date first written above:
BEAR XXXXXXX & CO. INC.
By:
-------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
-------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX
AND XXXXX, INCORPORATED
By:
-------------------------------
Name:
Title:
[Registration Rights Agreement]
