Exhibit 4.2
EXECUTION COPY
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Registration Rights Agreement
Date as of July 14, 1999
between
GlobeNet Communications Group Limited
and
TD Securities (USA) Inc.
and
Credit Suisse First Boston Corporation
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated
July 14, 1999 is made and entered into among GLOBENET COMMUNICATIONS GROUP
LIMITED (the "Issuer"), a Bermuda company, TD SECURITIES (USA) INC. and CREDIT
SUISSE FIRST BOSTON CORPORATION (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated July
8, 1999 between the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial Purchasers
of $300,000,000 aggregate principal amount of the Issuer's 13% Senior Notes due
2007 (the "Initial Notes"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuer has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
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capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
The term "broker-dealer" means any broker or dealer registered with
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the SEC under the 1934 Act.
"Closing Time" shall mean the Closing Time as defined in the Purchase
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Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
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depositary appointed by the Issuer; provided, however, that such depositary
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must have an address in the Borough of Manhattan in the City of New York.
"Exchange Notes" shall mean the 13% Senior Notes due 2007 issued by
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the Issuer under the Indenture containing terms identical to the Initial
Notes (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Initial Notes or, if no such interest has
been paid, from the date on which the Initial Notes were issued (ii) the
transfer restrictions thereon pertaining to United States securities laws
shall be eliminated and (iii) provisions relating to an increase in the
stated rate of interest thereon shall be eliminated), to be offered to
Holders of Registrable Notes in exchange for Initial Notes pursuant to the
Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Issuer of
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Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
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"Exchange Offer Registration" shall mean a registration under the 1933
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Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form F-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
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any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered holders of Registrable Notes
under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial Notes and
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Exchange Notes dated as of July 14, 1999 between the Issuer and Bankers
Trust Company, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Notes" shall have the meaning set forth in the preamble of
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this Agreement.
"Initial Purchasers" shall have the meaning set forth in the preamble
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of this Agreement.
"Issuer" shall have the meaning set forth in the preamble of this
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Agreement and also includes the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of outstanding Registrable Notes; provided that
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whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the
Issuer or any of its affiliates (as such term is defined in Rule 405 under
the 0000 Xxx) shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or amount.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten
offering determined in accordance with Section 4 hereof.
"Original Issue Date" shall mean the date on which the Initial Notes
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are issued under the Indenture.
"Participating Broker-Dealer" shall have the meaning set forth in
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Section 3(f) hereof.
"Person" shall mean an individual, partnership, corporation, limited
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liability company, trust, unincorporated organization or other legal entity
or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
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"Purchase Agreement" shall have the meaning set forth in the preamble
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of this Agreement.
"Registrable Notes" shall mean the Initial Notes; provided, however,
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that the Initial Notes shall cease to be Registrable Notes when (i) a
Registration Statement with respect to such Initial Notes shall have been
declared effective under the 1933 Act and such Initial Notes shall have
been disposed of pursuant to such Registration Statement, (ii) such Initial
Notes may be distributed to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Initial Notes shall have ceased to be outstanding, (iv) such
Initial Notes have been exchanged by a person other than a broker-dealer
for Exchange Notes upon consummation of the Exchange Offer or (v) following
the exchange by a Participating Broker-Dealer in the Exchange Offer of an
Initial Note for an Exchange Note, the date on which that Exchange Note is
sold to a purchaser who receives from that Participating Broker-Dealer on
or before the date of that sale a copy of the Prospectus.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Issuer with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state or
other securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of United States and local
counsel for any underwriters or Holders in connection with state or other
securities or blue sky qualification, if any, of any of the Exchange Notes
or Registrable 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,
certificates representing the Registrable Notes or Exchange Notes and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred
in connection with the listing, if any, of any of the Registrable Notes on
any securities exchange or exchanges, (vi) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vii) the fees and disbursements of counsel for the Issuer and of the
independent public accountants of the Issuer, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (viii) the fees and expenses of a "qualified
independent underwriter" if required by Schedule E of the By-Laws of the
NASD in connection with the offering of the Registrable Notes, (ix) the
fees and expenses of the Trustee, and any escrow agent or custodian, and
(x) any fees and disbursements of the underwriters customarily required to
be paid by issuers or sellers of securities (but excluding fees and
disbursements of counsel for the Initial Purchasers in connection with the
Exchange Offer Registration Statement, except to the extent such fees and
disbursements are incurred at the request of the Issuer) and the reasonable
fees and expenses of any special experts retained by the Issuer in
connection with any Registration Statement, but excluding (except as
otherwise provided herein) fees of United States counsel and Bermudian
counsel, if any, to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
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Issuer which covers any of the Exchange Notes or Registrable Notes pursuant
to the provisions of this Agreement, and all amendments and supplements to
any such Registration Statement, including post-effective
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amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Rule 144" shall mean Rule 144 promulgated under the 1933 Act or any
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successor rule thereto.
"SEC" shall mean the Securities and Exchange Commission.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Issuer pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Notes on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and 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.
"Trustee" shall mean Bankers Trust Company or any other trustee with
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respect to the Initial Notes under the Indenture.
2. Registration Under the 0000 Xxx. (a) Exchange Offer
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Registration. To the extent not prohibited by any applicable law or applicable
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interpretation of the staff of the SEC, the Issuer shall use its reasonable best
efforts to (A) file within 60 days after the Original Issue Date with the SEC an
Exchange Offer Registration Statement covering the offer by the Issuer to the
Holders to exchange all of the Registrable Notes for Exchange Notes, (B) cause
such Exchange Offer Registration Statement to be declared effective by the SEC
within 180 days after the Original Issue Date, (C) cause such Registration
Statement to remain effective until the closing of the Exchange Offer and (D)
consummate the Exchange Offer within 210 days after the Original Issue Date.
The Exchange Notes will be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the Issuer shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
eligible Holder (other than Participating Broker-Dealers) electing to exchange
Registrable Notes for Exchange Notes to trade such Exchange Notes from and after
their receipt without any limitations or restrictions under the 1933 Act.
In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) use the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to 5:00 P.M. New York City time on the last business day on
which the Exchange Offer shall remain open by sending to the institution
specified in the notice a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Registrable
Notes
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delivered for exchange, and a statement that such Holder is withdrawing its
election to have such Notes exchanged; and
(v) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the Issuer;
and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Notes to each Holder of Registrable Notes equal in principal amount to the
principal amount of the Registrable Notes of such Holder so accepted for
exchange.
Interest on each Exchange Note will accrue from the last date on which
interest was paid on the Registrable Notes surrendered in exchange therefor or,
if no interest has been paid on such Registrable Notes, from the Original Issue
Date. The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer, or the making of any exchange by a Holder, does not
violate applicable law or any applicable interpretation of the staff of the SEC.
Each Holder of Registrable Notes (other than Participating Broker-Dealers) who
wishes to exchange such Registrable Notes for Exchange Notes in the Exchange
Offer shall represent that (i) it is not an affiliate (as defined in Rule 405
under the 0000 Xxx) of the Issuer, (ii) any Exchange Notes to be received by it
are being acquired in the ordinary course of business and (iii) at the time of
the commencement, and at the consummation, of the Exchange Offer it has, and
will have, no arrangement with any Person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Notes, and each such Holder
shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
F-4 or another appropriate form under the 1933 Act available. Any Holder that
does not or cannot make any of the foregoing representations, or that is
otherwise prohibited by any law or policy of the SEC from participating in the
Exchange Offer, shall not be eligible to participate in the Exchange Offer. To
the extent permitted by law, the Issuer shall inform the Initial Purchasers of
the names and addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or
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applicable interpretations thereof by the Staff of the SEC, the Issuer is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason the Exchange Offer is not consummated within 210
days after the Original Issue Date, or (iii) upon the request of an Initial
Purchaser (with respect to any Registrable Notes which they acquired directly
from the Issuer) if such Initial Purchaser holds Registrable Notes which it
acquired directly from the Issuer, and if such Initial Purchaser is not
permitted, in the opinion of counsel to such Initial Purchaser, pursuant to
applicable law or interpretation of the staff of the SEC to participate in the
Exchange Offer, the Issuer shall, at its cost,
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(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Notes by the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Notes and
set forth in such Shelf Registration Statement, and use its reasonable best
efforts to cause such Shelf Registration Statement to be declared effective
by the SEC by the 60th day after such filing. In the event that the Issuer
is required to file a Shelf Registration Statement upon the request of an
Initial Purchaser pursuant to clause (iii) above, the Issuer shall file and
have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Notes
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Notes held by the Initial Purchasers after
completion of the Exchange Offer; provided that, with respect to Exchange
Notes received by the Initial Purchasers in exchange for any portion of an
unsold allotment of Initial Notes, the Issuer may, if permitted by current
interpretations by the staff of the SEC, 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 Section 2(b) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by (for so long as such
interpretation of the SEC shall continue to be effective) the provisions
herein applicable to, a Shelf Registration Statement;
(B) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years from the
date the Shelf Registration Statement is declared effective by the SEC (or
one year from the date the Shelf Registration Statement is declared
effective if such Shelf Registration Statement is filed upon the request of
an Initial Purchaser pursuant to clause (iii) above) or such shorter period
which will terminate when (i) all of the Registrable Notes covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (ii) the date on which, in the opinion of counsel
to the Issuer, all of the Registrable Notes then held by the Holders (which
are not affiliates of Issuers) may be sold by such Holders in the public
United States securities markets without registration under the 1933 Act
pursuant to Rule 144(k) under the 1933 Act or any successor provision
thereto or (iii) the date on which there ceases to be outstanding any
Registrable Notes; and
(C) notwithstanding any other provisions hereof, use its reasonable
best efforts to ensure that (x) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto comply in all material respects with the 1933 Act and
the rules and regulations thereunder, (y) any Shelf Registration Statement
and any amendment thereto do not, upon effectiveness, 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 (z) any Prospectus forming part of any Shelf Registration
Statement and any supplement to such Prospectus (as amended or supplemented
from time to time) do not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
The Issuer further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such
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amendment to become effective and such Shelf Registration to become usable as
soon as thereafter practicable and to furnish to the Holders of Registrable
Notes copies of any such supplement or amendment promptly after its being used
or filed with the SEC.
(c) Expenses. The Issuer shall be liable for and pay all Registration
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Expenses in connection with the registration pursuant to Section 2(a) or 2(b)
and (x) in the case of any Shelf Registration Statement (including any combined
Registration Statement as contemplated in section 2(b)(A) hereof) will reimburse
the Holders and the Initial Purchasers for the reasonable fees and disbursements
of one firm or counsel designated in writing by the Majority Holders to act as
counsel for the Holders of the Registrable Notes in connection therewith and (y)
in the case of an Exchange Offer Registration Statement, will reimburse the
Initial Purchasers for the reasonable fees and disbursements of one firm or
counsel in connection therewith, to the extent such fees and disbursements are
incurred at the request of the Issuer. Each Holder shall pay all expenses of
its counsel other than as set forth in the preceding sentence, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. (i) The Issuer will be deemed
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not to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if it voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Notes covered thereby not
being able to exchange or offer and sell such Registrable Notes during that
period unless (A) such action is required by applicable law or (B) such action
is taken by the Issuer in good faith and for valid business reasons (not
including avoidance of the Issuer's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Issuer promptly thereafter
complies with the requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
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effective, the offering of Registrable Notes pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange
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Offer Registration Statement is not filed with the SEC on or prior to the 60th
day after the Original Issue Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 180th day after the
Original Issue Date, (iii) the Exchange Offer is not consummated on or prior to
the 210th day after the Original Issue Date, (iv) a Shelf Registration Statement
with respect to the Registrable Notes, if required, is not declared effective on
or prior to the 60th day after it is required to be filed pursuant to Section
2(b) or (v) the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective but thereafter ceases to be effective (except
pursuant to Section 2(d)(ii)) without being succeeded immediately by an
additional registration statement filed and declared effective (each such event
referred to in clauses (i) through (v) above, a "Registration Default"), the per
annum interest rate borne by the Initial Notes shall be increased by an amount
equal to one-half of one percent (0.5%) with respect to the first 90-day period
following such Registration Default, payable in cash on each interest payment
date,
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such interest rate to increase by an additional one-quarter of one percent
(0.25%) for each subsequent 90-day period until such Registration Default has
been cured. Notwithstanding the foregoing, the maximum aggregate increase from
the original interest rate borne by the Initial Notes shall in no event exceed
one percent (1.0%) per annum. Upon the cure of the Registration Default by (v)
the filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (i) above, (w) the effectiveness of the Exchange Offer
Registration Statement after the 180-day period described in clause (ii) above,
(x) the consummation of the Exchange Offer after the 210-day period described in
clause (iii) above, (y) the effectiveness of a Shelf Registration Statement when
required after the 60-day period described in clause (iv) above, or (z) the
effectiveness of a succeeding registration statement described in clause (v)
above, the interest rate borne by the Initial Notes from the date of such
filing, effectiveness or consummation, as the case may be, will be reduced to
the original interest rate borne by the Initial Notes if no other Registration
Default exists; provided, however, that if, after any such reduction in interest
rate, a different Registration Default occurs, the interest rate will again be
increased pursuant to the foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies available to
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the Initial Purchasers and the Holders, the Issuer acknowledges that any failure
by the Issuer to comply with its obligations under Section 2(a) and Section 2(b)
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 Issuer's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
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the Issuer with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2 hereof, on the appropriate form
under the 1933 Act, which (i) shall be selected by the Issuer, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and (iii) shall comply as
to form in all material respects with the requirements of the applicable
form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least ten days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being filed
and advising such Holders that the distribution of Registrable Notes (or an
amendment thereto) will be made in accordance with the method elected by
the Majority Holders
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and designated by the Majority Holders in a notice given by them to the
Issuer; and (ii) furnish to each Holder of Registrable Notes, to counsel
for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Notes, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder, counsel or underwriter may reasonably
request, including, if such Holder, counsel or underwriter so requests,
financial statements and schedules and, if the Holder so requests, all
exhibits (including those incorporated by reference) in order to facilitate
the public sale or other disposition of the Registrable Notes pursuant to
the Shelf Registration Statement; and (iii) subject to the last paragraph
of this Section 3, consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes
covered by the Shelf Registration Statement in connection with the offering
and sale of the Registrable Notes covered by the Prospectus or any
amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Notes under all applicable state securities or "blue sky" laws
of such jurisdictions as the Majority Holders of Registrable Notes covered
by a Registration Statement or, in the case of an underwritten offering of
Registrable Notes, the Managing Underwriter of such underwritten offering,
if any, shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with
the Holders in connection with any filings required to be made with the
NASD, keep each such registration or qualification effective during the
period such Registration Statement is required to be effective and do any
and all other acts and things requested in writing by such Majority Holders
or Managing Underwriters which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction
of such Registrable Notes owned by such Holder; provided, however, that the
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Issuer shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d) or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for the Initial Purchasers promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for post-
effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, during the period a Registration Statement is effective,
the representations and warranties of the Issuer contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the Registrable Notes cease to be true and
correct in all material respects, (v) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening of
any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
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Statement or Prospectus in order to make the statements therein not
misleading and (vii) of any determination by the Issuer that a post-
effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Notes for Exchange Notes for the resale of such Exchange Notes,
(ii) furnish to each broker-dealer who desires to participate in the
Exchange Offer, without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such broker-dealer
may reasonably request, (iii) include in the Exchange Offer Registration
Statement a statement to the effect that any broker-dealer which holds
Registrable Notes acquired for its own account as a result of market-making
activities or other trading activities (a "Participating Broker-Dealer")
and who receives Exchange Notes for Registrable Notes pursuant to the
Exchange Offer may be a statutory underwriter and must deliver a Prospectus
meeting the requirements of the 1933 Act in connection with any resale of
such Exchange Notes, (iv) subject to the last paragraph of this Section 3,
hereby consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by any
broker-dealer whose market-making activities were done with the Issuer's
prior consent in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto in
accordance with the 1933 Act, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-
dealer, the undersigned represents that it will receive Exchange Notes
for its own account in exchange for Registrable Notes, it represents
that the Registrable Notes to be exchanged for 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
meeting the requirements of the 1933 Act in connection with any resale
of such Exchange Notes pursuant to the Exchange Offer; 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 1933 Act";
and (y) a statement to the effect that by making the acknowledgment
described in subclause (x) and by delivering a Prospectus in connection
with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the 1933
Act;
(B) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Issuer shall use its reasonable best efforts to cause
to be delivered at the request of an entity representing the Participating
Broker-Dealers (which entity shall be the TD Securities (USA) Inc., unless
it elects not to act as such representative) only one, if any, "cold
comfort" letter with respect to the Prospectus in the form existing on the
last date for which exchanges are accepted pursuant to the Exchange Offer
and with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (C) below; and
11
(C) to the extent any Participating Broker-Dealer who became such as a
result of market-making activities or other trading activities done with
the Issuer's prior consent participates in the Exchange Offer, the Issuer
shall use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective for a period of 150 days
following the closing of the Exchange Offer or such shorter period that
will terminate when such Participating Broker-Dealers have completed all
resales subject to applicable prospectus delivery requirements; provided,
however, that the Issuer shall not be required to maintain the
effectiveness of the Exchange Offer Registration Statement for more than 90
days following the consummation of the Exchange Offer unless the Issuer has
been notified in writing on or prior to the 90/th/ day following the
consummation of the Exchange Offer by such Participating Broker-Dealer that
it has received Exchange Notes as to which it will be required to deliver a
prospectus upon resale; and
(D) the Issuer shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) hereof, or take any other action
as a result of this Section 3(f), for a period exceeding the period for
which the Issuer is required to use its reasonable best efforts to maintain
the effectiveness of the Exchange Offer Registration Statement pursuant to
Section 3(f)(C) above and Participating Broker-Dealers shall not be
authorized by the Issuer to, and shall not, deliver such Prospectus after
such period in connection with resales contemplated by this Section 3.
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and, (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Notes, with copies of any request by
the SEC or any state securities authority for amendments or supplements to
a Registration Statement and Prospectus or for additional information;
(h) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf Registration,
without charge, at least one conformed copy of each Registration Statement
and any post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends; and cause such Registrable Notes to be in
such denominations (consistent with the provisions of the Indenture) in a
form eligible for deposit with the Depositary and registered in such names
as the selling Holders or the underwriters, if any, may reasonably request
in writing at least two business days prior to the closing of any sale of
such Registrable Notes pursuant to such Shelf Registration Statement;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use its reasonable best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required
12
document so that, as thereafter delivered to the purchasers of the
Registrable Notes, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Issuer agrees
to notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus until the Issuer has amended or
supplemented the Prospectus to correct such misstatement or omission. At
such time as such public disclosure is otherwise made or the Issuer
determines that such disclosure is not necessary, in each case to correct
any misstatement of a material fact or to include any omitted material
fact, the Issuer agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(l) obtain a CUSIP number for all Exchange Notes, or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Notes or the Registrable Notes, as the case may be, in a
form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Notes, or Registrable Notes, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested in writing by the
Majority Holders) in order to expedite or facilitate the disposition of
such Registrable Notes and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Notes 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 in
writing by them;
(ii) obtain opinions of counsel to the Issuer and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any, and the
Holders of a majority in principal amount of the Registrable Notes
being sold) addressed to each selling Holder and the underwriters, if
any, covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters;
13
(iii) obtain "cold comfort" letters and updates thereof from the
Issuer's independent certified public accountants addressed to the
underwriters, if any, and will use reasonable best efforts to have
such letters addressed to the selling Holders of Registrable Notes,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be in
form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into in the case
of an underwritten offering, cause the same to set forth
indemnification provisions and procedures substantially equivalent to
the indemnification provisions and procedures set forth in Section 5
hereof with respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The items set forth above in this Section 3(n) shall be done at (i) the
effectiveness of such Registration Statement (and, if appropriate, each
post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
In the case of any underwritten offering, the Issuer shall provide written
notice to the Holders of all Registrable Notes of such underwritten
offering at least 30 days prior to the filing of a prospectus supplement
for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify
a date, which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Issuer of its intent to
participate in such underwritten offering and (z) include the instructions
such Holder must follow in order to participate in such underwritten
offering;
(o) in the case of a Shelf Registration, make available for inspection
by representatives of the Holders of the Registrable Notes and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any U.S. counsel or accountant retained by such
Holders or underwriters, all pertinent financial and other records,
pertinent corporate documents and properties of the Issuer reasonably
requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Issuer to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement;
provided that any such records, documents, properties and such information
--------
that is designated in writing by the Issuer, in good faith, as confidential
("Confidential Information") at the time of delivery of such Confidential
Information shall not be made available for inspection unless and until
such representative, underwriter, special counsel or accountant signs a
confidentiality agreement reasonably satisfactory to the Issuer pursuant to
which the Confidential Information will be kept confidential by any such
representative, underwriter, special counsel or accountant and shall be
used only in connection with such Registration Statement, unless disclosure
thereof is made in connection
14
with a court proceeding or required by law, or such information has become
available (not in violation of this agreement) to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(p) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide a copy of such document to the Initial
Purchasers, and make such changes in any such document prior to the filing
thereof as the Initial Purchasers or their counsel may reasonably request;
(ii) in the case of a Shelf Registration, a reasonable time prior to filing
any Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Notes, to the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Notes, if any, and make such changes
in any such document prior to the filing thereof as the Holders of
Registrable Notes, the Initial Purchasers on behalf of such Holders, the
Initial Purchasers' counsel and any underwriter may reasonably request; and
(iii) cause the representatives of the Issuer to be available for
discussion of such document as shall be reasonably requested by the Holders
of Registrable Notes, the Initial Purchasers on behalf of such Holders or
any underwriter and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, the Initial Purchasers' counsel or any underwriter shall not have
previously been advised and furnished a copy or to which such Holders, the
Initial Purchasers on behalf of such Holders, the Initial Purchasers'
counsel or any underwriter shall reasonably object in writing;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Notes to be listed on any securities
exchange on which similar debt securities issued by the Issuer are then
listed if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any;
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Notes to be rated with the appropriate
rating agencies, if so requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any, unless the Registrable Notes are already so rated;
(s) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its U.S. counsel.
In the case of a Shelf Registration Statement, the Issuer may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Issuer, within 20 days after the
Issuer has requested such information, such information regarding such
15
Holder and the proposed distribution by such Holder of such Registrable Notes as
the Issuer may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees (a)
to furnish the information requested to be furnished pursuant to the immediately
preceding sentence within the time period specified therein and (b) that, upon
receipt of any notice from the Issuer of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vi)
hereof, such Holder will forthwith discontinue disposition of Registrable Notes
pursuant to a Registration Statement, and will not deliver any Prospectus
forming a part thereof, until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof or
written notice from the Issuer that the use of the Prospectus may be resumed,
and, if so directed by the Issuer, such Holder will deliver to the Issuer (at
the Issuer's expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes current at the time of receipt of such notice. If the Issuer
shall give any such notice to suspend the disposition of Registrable Notes
pursuant to a Shelf Registration Statement as a result of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(vi) hereof, the Issuer shall be deemed to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during such period of
suspension provided that the Issuer shall use its reasonable best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions or written notice from the Issuer that the
use of the Prospectus may be resumed.
4. Underwritten Registrations. If any of the Registrable Notes
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution. (a) In connection with any
--------------------------------
Exchange Offer Registration Statement or Shelf Registration Statement, the
Issuer shall indemnify and hold harmless the Initial Purchasers, each Holder
covered by such Registration Statement, including Participating Broker-Dealers,
each underwriter who participates in an offering of Registrable Notes, their
respective affiliates, and their respective directors, officers, employees,
agents and each Person, if any, who controls any of such parties within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Notes or Registrable
Notes were registered under the 1933 Act, including all documents
16
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
--------
5(d) below) any such settlement is effected with the written consent of the
Issuer; and
(iii) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any court or governmental
agency or body, commenced or threatened in connection with, or any claim
whatsoever based upon, any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Issuer by the Initial
Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto). This
indemnity agreement will be in addition to any liability which the Issuer may
otherwise have;
(b) In the case of a Shelf Registration, each Holder agrees, severally
and not jointly, to indemnify and hold harmless the Issuer, the Initial
Purchasers, each underwriter who participates in an offering of Registrable
Notes and the other selling Holders and each of their respective directors and
officers (including each officer of the Issuer who signed the Registration
Statement) and each Person, if any, who controls the Issuer, the Initial
Purchasers, any underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Issuer by or on behalf of such Holder, as the case
may be, expressly for use in the Registration Statement (or any amendment
thereto), or the Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Notes pursuant to such Shelf Registration Statement;
(c) Each indemnified party under this Section 5 shall give notice in
writing as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in
17
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it did not otherwise learn of such action and is not
materially prejudiced as a result of such failure, and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except asset forth below); provided, however, that such counsel
-------- -------
shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest; (ii) the 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 reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim 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 any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel and the indemnifying party is obligated to reimburse the indemnified
party under the foregoing provisions of this Section 5, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 5(a)(ii) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses
18
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer on the one
hand, the Initial Purchasers on another hand, and the Holders on another hand,
from the offering of the Exchange Notes or Registrable Notes included in such
offering or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Issuer on the one hand, the Initial Purchasers on another hand, and the
Holders on another hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations. The relative fault of the Issuer,
the Initial Purchasers, and the Holders, respectively, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Issuer, the Initial Purchasers or
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Issuer,
the Initial Purchasers and the Holders of the Registrable Notes agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by another method of allocation which does not take
account of the equitable considerations referred to above in this Section 5. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 5 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by an governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any 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 0000 Xxx) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each Person, if any, who
controls each Initial Purchaser or a Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or such Holder, and each director of the
Issuer, each officer of the Issuer who signed the Registration Statement, and
each Person, if any, who controls the Issuer within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Issuer. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to the Initial Purchasers
pursuant to the Purchase Agreement shall not be deemed to be a benefit received
by the Initial Purchasers in connection with the offering of the Exchange Notes
or Registrable Notes included in such offering.
6. Miscellaneous. (a) Rule 144 and Rule 144A. The Issuer
------------- ----------------------
covenants that it will (i) furnish to the Holders of Registrable Notes the
information and reports required to be furnished by Section 1008 of the
Indenture, (ii) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
take such further action that is reasonable in the circumstances, in each case,
to the extent required from time to time to enable such Holder to sell its
Registrable Notes without registration under the 1933 Act within the limitation
of the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may
be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of Registrable
Notes, the Issuer will deliver to such Holder a written statement as to whether
it has complied with such requirements.
19
(b) No Inconsistent Agreements. The Issuer has not entered into and
--------------------------
the Issuer on or after the date of this Agreement will not enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Issuer's other issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Issuer has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; provided, however, that no amendment, modification, supplement or
-------- -------
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any air courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuer by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is, with respect to the Initial
Purchasers, the addresses set forth in the Purchase Agreement; and (ii) if to
the Issuer, initially at the Issuer's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; at the time
received, if mailed or sent by air courier; when answered back, if telexed; and
when receipt is acknowledged, by recipient's telecopy operator, if telecopied.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors, assigns and transferees 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
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permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, 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.
(f) Third Party Beneficiary. Each Initial Purchaser shall be a third
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party beneficiary to the agreements made hereunder between the Issuer, on the
one hand, and the Holders, on the other
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hand, and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
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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
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
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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) Agent for Service; Submission to Jurisdiction; Waiver of
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Immunities. By the execution and delivery of this Agreement, the Issuer (i)
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irrevocably designates and appoints CT Corporation System (or any successor)
(together with any successor, the "Agent for Service"), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to this Agreement or the transactions, that may be instituted in any
federal or state court in the State of New York, or brought under United States
federal or state securities laws, and acknowledges that the Agent for Service
has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit or proceeding, and (iii) agrees that service of process
upon the Agent for Service (or any successor) and written notice of said service
to the Issuer, shall be deemed in every respect effective service of process
upon the Issuer in any such suit or proceeding. The Issuer further agrees to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of the Agent for Service in full force and effect so long as any of
the Initial Notes or Exchange Notes shall be outstanding.
To the extent that the Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
(l) Judgment Currency. In respect of any judgment or order give or
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made for any amount due hereunder that is expressed and paid in a currency (the
"judgment currency") other than U.S. dollars, the Issuer will indemnify each
Initial Purchaser, each Holder and any underwriter against any loss incurred by
each Initial Purchaser, such Holder or such underwriter as a result of any
variation as between (i) the rate of exchange at which the U.S. dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which such Initial Purchaser, such Holder or
such underwriter is able to purchase U.S. dollars with the amount of judgment
currency actually received by such Initial Purchaser, such Holder or such
underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Issuer and shall continue in full force and
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effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into U.S. dollars.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GLOBENET COMMUNICATIONS GROUP LIMITED
/s/ Xxx Xxxxxxxxx
By: ____________________________
Name: Xxx Xxxxxxxxx
Title: Vice President and
Secretary
Agreed and accepted as of
the date first above
written:
TD SECURITIES (USA) INC.
/s/ Xxx X. Ashtaryeh
By: __________________________
Name: Xxx X. Ashtaryeh
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
/s/ Xxxxxxx Xxxxx
By: __________________________
Name: Xxxxxxx Xxxxx
Title: Managing Director
