EXHIBIT 10.56
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 21, 1998
by and among
CROWN CASTLE INTERNATIONAL CORP.
AND
XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
AND
XXXXXXX, XXXXX & CO.
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This Registration Rights Agreement (this "Agreement") is made and entered
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into as of December 21, 1998 by and between Crown Castle International Corp., a
Delaware corporation (the "Company"), and Xxxxxx Brothers Inc., Xxxxxxx Xxxxx
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Barney Inc. and Xxxxxxx, Xxxxx & Co. (each an "Initial Purchaser," and together,
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the "Initial Purchasers"), who have agreed to purchase the Company's 12 3/4%
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Senior Exchangeable Preferred Stock due 2010 (the "Preferred Stock") pursuant to
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the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated December
16, 1998, (the "Purchase Agreement"), by and among the Company and the Initial
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Purchasers. Pursuant to the Certificate of Designations, Preferences and
Relative, Participating, Optional and Other Special Rights of Preferred Stock
and Qualifications, Limitations and Restrictions Thereof (the "Certificate of
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Designations") relating to the Preferred Stock and the New Preferred Stock (as
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defined) and under the terms of the Purchase Agreement, the Preferred Stock may
under certain conditions be exchanged for the Company's 12 3/4% Senior
Subordinated Exchange Debentures due 2010 (the "Exchange Debentures").
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In order to induce the Initial Purchasers to purchase the Preferred Stock,
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 3 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Certificate of Designations and in the
Indenture, dated December 21, 1998 (the "Exchange Indenture"), between the
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Company and United States Trust Company of Texas, N.A., as trustee (the
"Exchange Trustee"), relating to the Exchange Debentures and the New Exchange
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Debentures (as defined).
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.
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Affiliate: As defined in Rule 144 of the Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Business Day: Any day except a Saturday, Sunday or other day in the City
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of New York on which banks are authorized or ordered to close.
Certificate of Designations: The Certificate of Designations, Preferences
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and Relative, Participating, Optional and Other Special Rights of Preferred
Stock and Qualifications, Limitations and Restrictions Thereof, of the Preferred
Stock, dated December 18, 1998.
Closing Date: The date of this Agreement.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the New
Preferred Stock or, if the New Preferred Stock has been exchanged for the
Exchange Debentures, the New Exchange Debentures to be issued in the Exchange
Offer, (b) the maintenance of such Exchange Offer Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period
not less than the period required pursuant to Section 3(b) hereof and (c) the
delivery by the Company to the Transfer Agent of New Preferred Stock in the same
aggregate liquidation preference as the aggregate liquidation preference of
Preferred Stock tendered by Holders thereof pursuant to the Exchange Offer or,
if the Preferred Stock has been exchanged for Exchange Debentures, the delivery
by the Company to the Exchange Trustee of New Exchange Debentures in the same
aggregate principal amount as the aggregate principal amount of Exchange
Debentures tendered by Holders thereof pursuant to the Exchange Offer.
Debentures: The Exchange Debentures and the New Exchange Debentures.
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Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Debentures: The Company's 12 3/4% Senior Subordinated Exchange
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Debentures due 2010 issued pursuant to the Exchange Indenture, under certain
circumstances and at the Company's option, in exchange for all outstanding
shares of Preferred Stock and including, without limitation, all additional
Exchange Debentures issued in lieu of payment of cash interest in accordance
with the terms of the Exchange Indenture.
Exchange Offer: The registration by the Company under the Act of the New
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Preferred Stock or, if the Preferred Stock has been exchanged for Exchange
Debentures, the New Exchange Debentures, pursuant to the Exchange Offer
Registration Statement, pursuant to which the Company shall offer the Holders of
all Transfer Restricted Securities held by such Holders the opportunity to
exchange all such outstanding Transfer Restricted Securities for New Preferred
Stock with the same aggregate liquidation preference as the Preferred Stock
tendered in such Exchange Offer by such Holders, or New Exchange Debentures in
an aggregate principal amount equal to the aggregate principal amount of the
Exchange Debentures tendered in such exchange offer by such Holders, as the case
may be.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Preferred Stock or, if issued in exchange therefor, the Exchange
Debentures to certain "qualified institutional buyers," as such term is defined
in Rule 144A under the Act and pursuant to Regulation S under the Act.
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Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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New Exchange Debentures: The Company's 12 3/4% Senior Subordinated
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Exchange Debentures due 2010 to be issued pursuant to the Exchange Indenture (i)
in the Exchange Offer or (ii) upon the request of any Holder of Exchange
Debentures covered by a Shelf Registration Statement, in exchange for such
Exchange Debentures and including, without limitation, all additional New
Exchange Debentures issued in lieu of payment of cash interest in accordance
with the terms of the Exchange Indenture.
New Preferred Stock: The Company's 12 3/4% Senior Exchangeable Preferred
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Stock due 2010 to be issued pursuant to the Certificate of Designations (i) in
the Exchange Offer or (ii) upon the request of any Holder of Preferred Stock
covered by a Shelf Registration Statement, in exchange for such Preferred Stock
and including, without limitation, all additional shares of New Preferred Stock
issued in lieu of payment of dividends in accordance with the terms of the
Certificate of Designations.
Person: An individual, partnership, corporation, trust or unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
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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.
Preferred Stock: The Company's 12 3/4% Senior Exchangeable Preferred Stock
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due 2010 issued pursuant to the Certificate of Designations, including, without
limitation, all additional shares of Preferred Stock issued in lieu of payment
of cash dividends in accordance with the terms of the Certificate of
Designations.
Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company relating
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to (a) an offering of New Preferred Stock or New Exchange Debentures 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 and (ii) including the
Prospectus included therein, 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.
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Rule 144: Rule 144 promulgated under the Act.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Stock: The Preferred Stock and the New Preferred Stock.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
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in effect on the date of the Exchange Indenture.
Transfer Agent: ChaseMellon Shareholder Services, L.L.C.
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Transfer Restricted Securities: Each share of Stock or Debenture, as the
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case may be, until the earliest to occur of (a) the date on which such share of
Stock or such Debenture is exchanged in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) the date on which such share of Stock or
such Debenture has been disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such share of Stock or such Debenture is
disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein) or (d) the date on which such share of Stock
or such Debenture is distributed to the public pursuant to Rule 144 under the
Act.
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.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing Date (the
"Exchange Offer Filing Date"), but in no event later than 60 days after the
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Closing Date (such 60th day being the "Filing Deadline"), (ii) use all
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commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 150 days after the Closing Date (such 150th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
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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 New Preferred Stock or
the New Exchange Debentures, as the case may be, to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of the
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Exchange Offer and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting registration of the New
Preferred Stock or the New Exchange Debentures, as the case may be, to be
offered in exchange for the Preferred Stock or the Exchange Debentures,
respectively, that are Transfer Restricted Securities and to permit resales of
New Preferred Stock or New Exchange Debentures, as the case may be, by Broker-
Dealers that tendered into the Exchange Offer for Preferred Stock or Exchange
Debentures, respectively, that such Broker-Dealer acquired for its own account
as a result of market making activities or other trading activities (other than
Preferred Stock or, if issued in exchange therefor, Exchange Debentures acquired
directly from the Company or any of its Affiliates) as contemplated by Section
3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the New Preferred
Stock or, if issued in exchange therefor, the New Exchange Debentures shall be
included in the Exchange Offer Registration Statement. The Company shall use its
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 Business Days thereafter.
(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 that 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 Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company),
may exchange such Transfer Restricted Securities pursuant to the Exchange Offer;
however, 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 New Preferred
Stock or New Exchange Debentures, as the case may be, received by such Broker-
Dealer in the Exchange Offer and that the Prospectus contained in the Exchange
Offer Registration Statement may be used to satisfy such prospectus delivery
requirement. 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.
To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for sales of New Preferred Stock or New Exchange
Debentures, as the case may be, by Broker-Dealers, the Company agrees to use its
best efforts to keep the Exchange Offer
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Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of 180 days from
the date on which the Exchange Offer is Consummated, or such shorter period as
will terminate when all Transfer Restricted Securities held by such Broker-
Dealers covered by such Registration Statement have been sold pursuant thereto
(unless such period is extended pursuant to Section 6(c)(i) below). The Company
shall promptly 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 Exchange Offer is not permitted by
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applicable law (after the Company has complied with the procedures set forth in
Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 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 or (B) such Holder may not
resell the New Preferred Stock or New Exchange Debentures, as the case may be,
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 Preferred Stock or, if issued in
exchange therefor, Exchange Debentures acquired directly from the Company or any
of its Affiliates, then the Company shall:
(x) cause to be filed, on or prior to 45 days after the earlier of (i) the
date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a) (ii) above,
(such earlier date, the "Filing Deadline"), a shelf registration statement
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pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement")), relating to
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all Transfer Restricted Securities, and
(y) shall use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Filing Deadline (such 90th day the "Effectiveness Deadline").
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If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law, 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
shall remain obligated to meet the Effectiveness Deadline set forth in clause
(y).
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented and
amended as required by and
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subject to the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for sales of Transfer Restricted
Securities by the Holders thereof entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of at least two years (as extended pursuant to Section
6(c)(i)) following the date on which such Shelf Registration Statement first
becomes effective under the Act, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted Securities (as
defined in Rule 144 under the Act).
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to 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
(a) 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 within 30 Business Days after the
Exchange Offer Registration Statement is first declared effective by the
Commission or (iv) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective immediately (except as permitted in
paragraph (b); such period of time during which any such Registration Statement
is not effective or any such Registration Statement or the related Prospectus is
not usable being referred to as a Blackout Period") (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the Company hereby
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agrees to pay to each Holder of Transfer Restricted Securities affected thereby
liquidated damages in an amount equal to $.05 per week per $1,000 in liquidation
preference (in the case of Stock) or principal amount (in the case of
Debentures) of Transfer Restricted Securities held by such Holder for each week
or portion thereof that the Registration Default continues for the first 90-day
period immediately following the occurrence of such Registration Default. The
amount of the liquidated damages shall increase by an additional $.05 per week
per $1,000 in liquidation preference (in the case of Stock) or principal amount
(in the case of Debentures) of Transfer Restricted Securities with respect to
each
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subsequent 90-day period until all Registration Defaults have been cured,
up to a maximum amount of liquidated damages for all Registration Defaults of
$.50 per week per $1,000 in liquidation preference (in the case of Stock) or
principal amount (in the case of Debentures) 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.
(b) A Registration Default referred to in Section 5(a)(iv) shall be deemed
not to have occurred and be continuing in relation to a Registration Statement
or the related Prospectus if (i) the Blackout Period has occurred solely as a
result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
Prospectus or (y) the occurrence of other material events with respect to the
Company that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement (including by way of filing
documents under the Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the related Prospectus
to describe such events: provided, however, that in any case if such Blackout
Period occurs for a continuous period in excess of 30 days, a Registration
Default shall be deemed to have occurred on the 31st day of such Blackout Period
and liquidated damages shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default is
cured or until the Company is no longer required pursuant to this Agreement to
keep such Registration Statement effective or such Registration Statement or the
related Prospectus usable; provided further, however, that in no event shall the
total of all Blackout Periods exceed 60 days in the aggregate in any 12-month
period.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of dividends in the Certificate
of Designations, on each Dividend Payment Date, as more fully set forth in the
Certificate of Designations or, if the Preferred Stock has been exchanged for
Exchange Debentures, in the manner provided for the payment of interest in the
Exchange Indenture, on each Interest Payment Date, as more fully set forth in
the Exchange Indenture and the Exchange Debentures. Liquidated damages, if any,
incurred prior to December 15, 2003, may be paid, at the Company's option, by
the issuance of additional shares of Preferred Stock having an aggregate
liquidation preference equal to the amount of liquidated damages or, if the
Preferred Stock has been exchanged for Exchange Debentures, by the issuance of
additional Exchange Debentures having an aggregate principal
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amount equal to the amount of such liquidated damages. All obligations of the
Company set forth in the preceding paragraph that are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Company shall comply with all applicable provisions of Section 6(c)
below, shall use its best efforts to effect such exchange and to permit the
resale of New Preferred Stock or New Exchange Debentures, as the case may be, by
Broker-Dealers that tendered in the Exchange Offer Preferred Stock or Exchange
Debentures, respectively, that such Broker-Dealer acquired for its own account
as a result of its market making activities or other trading activities (other
than Preferred Stock or, if issued in exchange therefor, Exchange Debentures
acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and
shall 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 hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company
hereby agrees 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 of such submission.
(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 (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 New
Preferred Stock or the New Exchange Debentures, as the case may be, to be
issued in the Exchange Offer and (C) it is acquiring the New Preferred
Stock or the New Exchange Debentures, as the case may be, in its ordinary
course of business. Each Holder using the Exchange Offer to participate in
a
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distribution of the New Preferred Stock or the New Exchange Debentures, as
the case may be, hereby acknowledges and agrees that, if the resales are of
New Preferred Stock or New Exchange Debentures, as the case may be,
obtained by such Holder in exchange for Preferred Stock or Exchange
Debentures, respectively, 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
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Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
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in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
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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 shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
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Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
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(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
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letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the New Preferred Stock or the
New Exchange Debentures, as the case may be, to be received in the Exchange
Offer and that, to the best of the Company's information and belief, each
Holder participating in the Exchange Offer is acquiring the New Preferred
Stock or the New Exchange Debentures, as the case may be, in its ordinary
course of business and has no arrangement or understanding with any Person
to participate in the distribution of the New Preferred Stock or the New
Exchange Debentures, as the case may be, 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
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Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company 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.
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(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement, the Company shall:
(i) use its best 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 or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use its best efforts to cause such amendment to be declared
effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the selling Holders promptly and, if requested by such
Persons, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (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
11
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) 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 the Initial Purchasers and, if requested by any
selling Holder, to such Holder, named in any Registration Statement or
Prospectus in connection with such sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders in connection with such
sale, if any, for a period of at least five Business Days, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which the
selling Holders of the Transfer Restricted Securities covered by such
Registration Statement in connection with such sale, if any, shall
reasonably object within five Business Days after the receipt thereof. A
selling Holder shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act;
(vi) upon the reasonable request of any selling Holder, promptly
prior to the filing of any document that is to be incorporated by reference
into a Registration Statement or Prospectus, provide copies of such
document to the selling Holders in connection with such sale, if any, make
the Company's 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;
(vii) in the case of any Shelf Registration, make available at
reasonable times for inspection by the selling Holders participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such selling Holder, attorney or accountant in
connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing
12
thereof and prior to its effectiveness, in each case as shall reasonably be
necessary to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers and such selling Holders by you and on
behalf of the other parties, by one counsel designated by and on behalf of
such other parties as described in Section 7 hereof, provided, further,
that any records, documents, properties or information that are designated
by the Company as confidential at the time of delivery of such records,
documents, properties or information shall be kept confidential by such
persons, unless (i) such records, documents, properties or information are
in the public domain or otherwise publicly available, (ii) disclosure of
such records, documents, properties or information is required by court or
administrative order or (iii) disclosure of such records, documents,
properties or information, in the written opinion of counsel to such
person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Act);
(viii) subject to Section 4(b) hereof, if reasonably requested by
selling Holders of a majority of the aggregate liquidation preference of
Stock or principal amount of Debentures, as the case may be, constituting
Transfer Restricted Securities being sold in connection with such offering,
if any, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
provided, however. that the Company shall not be required to take any
action pursuant to this Section 6(c)(viii) that would, in the opinion of
counsel for the Company reasonably satisfactory to the Initial Purchasers,
violate applicable law;
(ix) furnish to each selling Holder in connection with such sale,
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling 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
hereby consents to the use (in accordance with law and subject to the
provisions of this Agreement) of the Prospectus and any amendment or
supplement thereto by each of the selling Holders 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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(xi) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Holder of Transfer Restricted Securities in connection with any sale or
resale pursuant to any applicable Registration Statement and in such
connection, the Company shall:
(A) Upon the request of any selling Holder, furnish (or in the case
of paragraphs (2) and (3), use its best efforts to cause to be furnished)
to each selling Holder, upon the effectiveness of the Shelf Registration
Statement or upon Consummation of the Exchange Offer, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the Chief Executive Officer or President and (y) the
Chief Financial Officer or Treasurer of the Company, as set forth in
Section 7(n) of the Purchase Agreement and such other similar matters
as are customary and as the selling 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 covering
matters similar to those set forth in of Section 7(d) of the Purchase
Agreement and such other matters as the selling Holders may reasonably
request, and in any event including a statement to the effect that
such counsel has participated in conferences with officers of the
Company and with the independent public accountants for the Company
concerning the preparation of the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, and
although such counsel has made certain inquiries and investigations in
connection with such preparation, it is not passing upon and does not
assume any responsibility for the accuracy or completeness of the
statements contained in such Registration Statements, except insofar
as such statements relate to such counsel, and on the basis of the
foregoing, such counsel's work in connection with this matter did not
disclose any information that gave such counsel reason to believe that
the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective ,
or the Prospectus contained in such Registration Statement as of its
date, and, in the case of the Exchange Offer Registration Statement,
as of the date of Consummation of the Exchange Offer, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; 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
14
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, and meeting the requirements set forth in
the comfort letters delivered pursuant to Sections 7(k) and 7(l) of
the Purchase Agreement;
(B) Set forth in full or incorporated by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) Deliver such other customary documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance with
clause (A) above and with any customary conditions contained in any
agreement entered into by the Company pursuant to this clause (xi).
If at any time the representations and warranties of the Company set forth
in the certificate contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested by
such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) issue, upon the request of any Holder of Preferred Stock or
Exchange Debentures covered by any Shelf Registration Statement
contemplated by this Agreement, New Preferred Stock or New Exchange
Debentures, respectively having an aggregate liquidation preference or an
aggregate principal amount, as the case may be, equal to the aggregate
liquidation preference of Preferred Stock or aggregate principal amount of
Exchange Debentures surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such New Preferred Stock or New
Exchange Debentures to be registered in the name of such Holder or in the
name of the purchaser(s) of such New Preferred Stock or New Exchange
Debentures, as the case may be; in return, the Preferred Stock or Exchange
Debentures, as the case may be, held by such Holder shall be surrendered to
the Company for cancellation;
15
(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 selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and such
names as the selling Holders may request at least two Business Days prior
to such sale of Transfer Restricted Securities pursuant to such
Registration Statements;
(xv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(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 Transfer Agent (in the case
of Stock) or the Exchange Trustee (in the case of Debentures) with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a twelve-
month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the
Act);
(xviii) (A) if the Stock or the Debentures have been rated prior to
the initial sale of the Preferred Stock, use its best efforts to confirm
that such ratings will apply to the Transfer Restricted Securities covered
by a Registration Statement, or (B) if the Stock and the Debentures were
not previously rated, use commercially reasonable efforts to 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 liquidation preference of Stock or principal
amount of Debentures, as the case may be, covered thereby or the managing
underwriter(s), if any;
(xix) cause the Exchange Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with the
Exchange Trustee and the Holders to effect such changes to the Exchange
Indenture as may be required for such Exchange Indenture to be so qualified
in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Exchange 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 Exchange Indenture to be so
qualified in a timely manner; and
16
(xx) 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)(i) 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 was current at
the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's 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 of Prospectuses), messenger and
delivery services and telephone; (iv) all reasonable fees and disbursements of
counsel for the Company and one firm of counsel designated by the Holders of a
majority in aggregate liquidation preference of Stock or principal amount of
Debentures, as the case may be, constituting Transfer Restricted Securities to
act as counsel for the Holders in connection therewith; (v) all application and
filing fees in connection with listing the New Preferred Stock or the New
Exchange Debentures, as the case may be, on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (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 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.
17
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxxx, New York, New York, unless another firm shall be chosen by the
Holders of a majority in aggregate liquidation preference of Stock or principal
amount of Debentures, as the case may be, constituting Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
(c) Each Holder of Transfer Restricted Securities will pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Transfer Restricted
Securities.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), 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)
provided by the Company to any holder or any prospective purchaser of New
Preferred Stock or New Exchange Debentures, as the case may be, 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,
provided, however, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in a Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus relating to a Shelf
Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary Prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Holder or Broker-Dealer from whom the person asserting any such losses, claims,
damages or liabilities purchased the Transfer Restricted Securities concerned,
to the extent that a Prospectus relating to such Securities was required to be
delivered by such Holder or Broker-Dealer under the Act in
18
connection with such purchase and any such loss, claim, damage or liability of
such Holder or Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final Prospectus if the Company
has previously furnished copies thereof to such Holder of Broker-Dealer;
provided further, however, that this indemnity agreement will be in addition to
any liability which the Company may otherwise have to such Indemnified Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors and
officers, and each controlling person, if any, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with reference to information relating to such Indemnified Holder furnished
in writing to the Company by such Indemnified Holder expressly for use in any
Registration Statement and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have the Company or
any of their controlling persons.
(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), an Indemnified 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 Indemnified 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 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
19
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Holders of a majority in aggregate liquidation preference of Stock
or principal amount of Debentures, as the case may be, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company, 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 (i) 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 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 or (ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(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, on the one
hand, and the Indemnified Holders, on the other hand, from their sale of
Transfer Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as 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, on the one hand, and of the
Indemnified 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, on the one hand, and of the Indemnified 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, on the one hand, or by the Indemnified 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
20
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company 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 or its
related Indemnified Holders 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 its Transfer Restricted Securities pursuant to a
Registration Statement exceeds 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 aggregate liquidation
preference of Stock or principal amount of Debentures constituting Transfer
Restricted Securities held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by the
--------
Company to comply with its 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 obligations under Sections 3 and
4 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
21
(b) No Inconsistent Agreements. The Company will not, on or after the date
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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. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Stock and the Debentures. The Company will
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not take any action, or permit any change to occur, with respect to the Stock
and the Debentures that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) 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(d)(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 aggregate liquidation
preference of Stock or principal amount of Debentures, as the case may be,
constituting Transfer Restricted Securities (excluding Transfer Restricted
Securities held by the Company of its Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the aggregate
liquidation preference of Stock or principal amount of Debentures, as the case
may be, constituting Transfer Restricted Securities subject to such Exchange
Offer.
(e) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company, 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.
(f) Notices. All notices and other communications provided for or
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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
Transfer Agent or, if the Stock has been exchanged for Debentures, of the
Registrar under the Exchange Indenture, with a copy to the Exchange Trustee
under the Exchange Indenture; and
(ii) if to the Company:
22
Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Transfer Agent at
000 Xxxx 00xx Xx., 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, if the Stock has
been exchanged for Debentures, to the Exchange Trustee at the address specified
in the Exchange Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Xxxxxx Brothers Inc.
on behalf of the Initial Purchasers (in the form attached hereto as Exhibit A)
and shall be addressed to: Attention: Compliance Department, 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
(g) 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 of Transfer Restricted Securities; 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, the Certificate of Designations or the Exchange Indenture. 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.
23
(h) 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.
(i) 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.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) 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.
(l) 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.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Crown Castle International Corp.
/s/ Xxxxx Xxxxxxxxx
By:___________________________________________
Xxxxx Xxxxxxxxx
Name:_______________________________________
Vice President
Title:______________________________________
Xxxxxx Brothers Inc.
/s/ Xxxx Xxxxxx
By:__________________________
Name: Xxxx Xxxxxx
Title: Analyst
Xxxxxxx Xxxxx Xxxxxx Inc.
/s/ Xxxxxxx X. Xxxxxx
By:__________________________
Name: Xxxxxxx X. Xxxxxx
Title: Director
Xxxxxxx, Sachs & Co.
/s/ Xxxxxxx, Xxxxx & Co.
By:__________________________
Name:
Title:
25
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Compliance Department
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
From: Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Re: 12 3/4% Senior Exchangeable Preferred Stock due 2010
Date:__________________
For your information only (NO ACTION REQUIRED):
Today, ____________, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within
[_____] business days of the date hereof.
