EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made as of
December 5, 1997, by and among United International Holdings Inc., a Delaware
corporation ("UIH"), Belmarken Holding B.V., a company incorporated under the
laws of the Kingdom of the Netherlands ("Borrower"), and The Toronto-Dominion
Bank as the Security Trustee (the "Security Trustee").
WHEREAS, by a Loan Agreement dated December 5, 1997, (the "Loan Agreement")
between Borrower, The Toronto-Dominion Bank and Toronto-Dominion Capital (USA),
Inc. as Arrangers, Cable Network Netherlands Holding B.V., Binan Investments
B.V. and Stipdon Investments B.V. (collectively the "Guarantors"), the banks and
financial institutions listed in part A of schedule 1 thereto (the "Banks"), The
Toronto-Dominion Bank as Agent and The Toronto-Dominion Bank as Security
Trustee, the Banks have agreed, according to their several obligations, upon the
terms and conditions therein contained, to make available to Borrower, under the
guarantee of the Guarantors, a term loan facility of up to $125,000,000.
WHEREAS, Borrower is an indirect subsidiary of UIH;
WHEREAS, Borrower owns 3,169,151 shares (the "Shares") of the issued and
outstanding Class A Common Stock of UIH (the "Common Shares"), which Shares are
the subject of a security interest granted pursuant to a Pledge Agreement from
Borrower to the Security Trustee dated December __, 1997 (the "Pledge");
WHEREAS, Borrower, Guarantors, the Security Trustee and other parties are
parties to a Security Trust Deed (the "Deed") dated December 5, 1997 pursuant to
which the Security Trustee holds the Trustee Security Documents (as defined
therein) on trust for the Beneficiaries (as defined therein);
WHEREAS, in consideration of the term loan facility to be made available by
the Banks to Borrower pursuant to the Loan Agreement, UIH has agreed upon the
terms and conditions set forth herein to register the Shares for sale upon
demand of the Security Trustee or any transferee of the Shares.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are acknowledged, the parties to this Agreement hereby
agree as follows:
1. Required Registration. Upon the receipt by UIH from any Holder (which
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term includes the Security Trustee and any transferee of the Shares pursuant to
Section 7 hereof) of a written request (a "Request") for the registration of the
Shares, UIH shall prepare and file a registration statement on Form S-1 [or such
other form as may then be used to register the sale of the Shares after a
default by Borrower under the Loan Documents (as hereinafter defined)] with the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "1933 Act"), covering the
sale of the Shares under the 1933 Act. UIH shall not, without the prior written
consent of such Holder, include any of its other securities in such registration
or effect any other registration of securities the same as or similar to the
Shares by UIH for its own account (other than on Form S-4 or Form S-8) during
the period commencing upon the date such registration statement becomes
effective and ending on the earlier of 120 days following such effective date or
the date on which all Shares included in such registration statement have been
sold. The Company shall not be obligated to effect more than three
registrations pursuant to this Section 1; provided, however, that a registration
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shall not count as one of the three demand registrations under this Section 1
until the registration statement covering all of the Shares included in the
Request has been declared or ordered effective.
2. Registration Procedures. If and whenever UIH is required by any
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Holder (an "Initiating Holder") pursuant to the provisions of Section 1 or
Section 3 hereof to effect the registration of the Shares under the 1933 Act,
UIH will:
a. prepare and file with the SEC within 30 days of UIH's receipt of a
Request, a registration statement with respect to the Shares, and use its best
efforts to cause such registration statement to become effective as soon as
practicable thereafter but in any event within 90 days of UIH's receipt of the
Request;
b. promptly prepare and file with the SEC such post-effective
amendments to such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration statement
effective until the earlier of (i) the date on which all Shares covered by such
registration statement have been sold, or (ii) 120 days after the effective date
of such registration statement;
c. use its best efforts to register or qualify the Shares for sale
under such other securities or blue sky laws of such states as the Initiating
Holder reasonably requests, and do any and all other acts and things which may
be reasonably necessary or desirable to enable the Initiating Holder to
consummate the disposition of the Shares in such states; provided, however, that
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UIH will not be required to (i) qualify generally to do business in any state
where it would not otherwise be required to qualify but for this Xxxxxxx 0x,
(xx) subject itself to taxation in any such state, or (iii) consent to general
service of process in any such state;
d. furnish to the Initiating Holder and to the underwriters of the
Shares a reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus, and such other documents as the Initiating Holder
or underwriters may reasonably request in order to facilitate the public
offering of the Shares;
e. notify the Initiating Holder promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
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f. notify the Initiating Holder promptly of any request by the SEC for
the amending or supplementing of such registration statement or prospectus or
for additional information;
g. prepare and file with the SEC, promptly upon the request of the
Initiating Holder any amendments or supplements to such registration statement
or prospectus which, in the opinion of counsel for the Initiating Holder are
required under the 1933 Act or the rules and regulations thereunder in
connection with the distribution of the Shares by the Initiating Holder;
h. prepare and promptly file with the SEC, and promptly notify the
Initiating Holder of the filing of, any amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the 1933 Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statement therein, in the light of
the circumstances in which they were made, not misleading;
i. advise the Initiating Holder promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued;
j. at least three days prior to the filing of any amendment or
supplement to such registration statement or prospectus, furnish copies thereof
to the Initiating Holder and refrain from filing any such amendment or
supplement to which the Initiating Holder shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the 1933 Act or the rules and regulations
thereunder, unless in the opinion of counsel for UIH the filing of such
amendment or supplement is reasonably necessary to protect UIH from any
liabilities under any applicable federal or state law and such filing will not
violate applicable law;
k. upon request of the Initiating Holder, enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the Initiating Holder may reasonably request to facilitate
the disposition of the Shares;
l. at the request of the Initiating Holder, furnish on the date or
dates provided for in the underwriting agreement: (i) an opinion of counsel for
UIH addressed to the underwriters, if any, opining as to such matters as may be
reasonably agreed to by such underwriters and UIH; and (ii) a "comfort" letter
or letters from the independent certified public accountants of UIH, addressed
to the underwriters, if any, covering such matters as such underwriters
reasonably request, in which letters such accountants shall
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state (without limiting the generality of the foregoing) that they are
independent certified public accountants within the meaning of the 1933 Act and
that in the opinion of such accountants the financial statements and other
financial data of the UIH included in the registration statement or any
amendment or supplement thereto comply in all material respect with the
applicable accounting requirements of the 1933 Act;
m. make available for inspection by the Initiating Holder, any
underwriter participating in the disposition of the Shares pursuant to such
registration statement and any attorney, accountant or other agent retained by
the Initiating Holder or any such underwriter, all financial and other records,
pertinent corporate documents and properties of UIH, and cause UIH's officers,
directors, employees and independent accountants to supply all information
reasonably requested by the Initiating Holder or any such underwriter, attorney,
accountant or agent in connection with such registration statement;
n. cause the Shares to be listed on the NASDAQ National Market; and
o. otherwise use its 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 the period of at least
twelve months beginning with the first day of UIH's first full calendar quarter
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder.
3. Company Registration.
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a. Notice of Registration. If at any time or from time to time the
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Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans; or (ii) a registration
relating solely to a transaction subject to Rule 145 under the 1933 Act, the
Company will:
i. promptly give to each Holder written notice thereof; and
ii. subject to the provisions of Sections 3b, c, d and e below,
include in such registration (and any related qualification under Blue Sky laws
or other compliance) and in any underwriting involved therein all the Shares
specified in a written request or requests made within 20 days after receipt of
such written notice from the Company by any Holder.
b. Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3a.i. In such event the right of any Holder to registration
pursuant to Section 3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of the Shares in the underwriting to the
extent provided herein. All Holders proposing to
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distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 3, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the Shares to
be included in such registration. The Company shall advise all Holders and
other holders distributing their securities through such underwriting of any
such limitation; and the number of the shares that may be included in the
registration and underwriting shall be allocated among all Holders and such
other holders in proportion, as nearly as practicable, to the respective amounts
of the Shares held by such Holders and securities of the Company held by such
other holders at the time of filing the registration statement in accordance
with paragraphs d and e below. If any Holder disapproves of the terms of any
such underwriting, such Holder may elect to withdraw therefrom by written notice
to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting, in the event that such underwriting represents
the initial underwritten public offering of the Company's securities, shall be
withdrawn from such registration and shall not be transferred in a public
distribution prior to 90 days after the effective date of the registration
statement relating thereto or such other shorter period of time as the
underwriters may require.
c. Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it under this Section 3
prior to the effectiveness of such registration, whether or not any Holder has
elected to include Shares in such registration.
d. Priority on Primary Registrations. If a registration under Section
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3 is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, pro rata among the holders of registration rights pursuant to the
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present terms of agreements between such holders and the Company in existence as
of the date hereof, on the basis of the number of shares requested to be
registered by such holders and (iii) third, pro rata among the Holders of the
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Shares, on the basis of the number of Shares requested to be registered by
Holders. To facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocated to any Holder
or other such holder to the nearest one hundred (100) shares.
e. Priority on Secondary Registration. If a registration under
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Section 3 is an underwritten secondary registration on behalf of holders of the
Company's securities other than Holders of the Shares, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the
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Company shall include in such registration (i) in the event such registration is
pursuant to a demand by the holders of registration rights pursuant to
agreements between such holders and the Company as in existence as of the date
hereof, pro rata among the (a) first, the securities requested to be included
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therein by such other holders requesting such registration, (b) second, the
Shares requested to be included therein by the Holders,(c) third, securities
requested to be included in such registration by the Company, and (d) fourth,
other securities requested to be included in such registration by other security
holders seeking to include securities in such registration.
4. Right to Sell the Shares. UIH, Borrower and the Security Trustee
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agree that the rights of the Security Trustee and the Beneficiaries to require
the sale of the Shares pursuant to a registration statement under the 1933 Act
filed pursuant to the terms of this Agreement and how the net proceeds from any
such sale are to be applied shall be as provided in the Loan Agreement, Pledge,
Deed and other agreements or instruments executed in connection therewith
(collectively the "Loan Documents"). The rights of any Holder who acquires some
or all of the Shares from the Security Trustee shall not be subject to any
provisions of the Loan Documents.
5. Expenses. With respect to a registration requested pursuant to Section
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1 or Section 3 hereof, UIH and Borrower shall be jointly and severally
responsible for payment of all fees, costs and expenses of such registration,
including but not limited to the following fees, costs and expenses, all
registration, filing, and stock exchange or NASDAQ fees, printing expenses, fees
and disbursements of counsel and accountants for UIH, fees and disbursements of
other Persons retained by UIH, all legal fees and disbursements and other
expenses of complying with state securities or blue sky laws of any states in
which the Shares are to be registered or qualified, and the reasonable fees and
disbursements of counsel for the Initiating Holder. All underwriting discounts
and commissions with respect to any Shares sold pursuant to such registration
shall be paid solely by Borrower.
6. Indemnification.
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a. By UIH. UIH shall indemnify and hold harmless the Security
Trustee, the Beneficiaries, any Initiating Holder and any underwriter (as
defined in the 0000 Xxx) for the Security Trustee, the Beneficiaries, or any
Initiating Holder, and each Person, if any, who controls the Security Trustee,
the Beneficiaries, any Initiating Holder, or such underwriter within the meaning
of the 1933 Act, from and against any and all loss, damage, liability or claims,
to which the Security Trustee, the Beneficiaries, any Initiating Holder or any
such underwriter or controlling Person becomes subject under the 1933 Act or
otherwise, and subject to the provisions of paragraph c hereof to reimburse
them, from time to time upon request, for any legal or other costs or expenses
reasonably incurred by them in connection with investigating any claims or
defending any actions (as provided in paragraph c hereof), insofar as such
losses, damages, liabilities, claims, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in such
registration statement,
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any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; provided, however, that UIH will not be liable in any such case to
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the extent that any such loss damage, liability, claim, cost or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission (other than a statement or omission about UIH) made
in conformity with information furnished by the Security Trustee, the
Beneficiaries, or any Initiating Holder in writing specifically for use in the
preparation of a registration statement or (ii) the failure of the Security
Trustee, the Beneficiaries or any Initiating Holder to deliver a copy of the
registration statement, prospectus or any amendments or supplements thereto
after UIH has furnished them with sufficient copies of the same. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liabilities are incurred.
b. By the Security Trustee, the Beneficiaries, and any Initiating
Holder. Each of the Security Trustee, the Beneficiaries and any Initiating
Holder will indemnify and hold harmless UIH, and each Person, if any, who
controls UIH, from and against any and all loss, damage, liability or claim, to
which UIH or any controlling Person becomes subject under the 1933 Act or
otherwise and to reimburse them, from time to time upon request, for any legal
or other costs or expenses reasonably incurred by them in connection with
investigating any claims or defending any actions, insofar as such losses,
damages, liabilities, costs, or expenses are caused by any untrue or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written information
furnished by such party specifically for use in the preparation of such
registration statement.
c. Notice. Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph a or b of this Section 6 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provision, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said paragraph
a or b, promptly notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the
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defense thereof, with counsel satisfactory to such indemnified party; provided,
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however, if the defendants in any action include both the indemnified party and
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the indemnifying party and there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties; provided, however, that UIH's obligation under paragraph a of this
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Section 6 to reimburse any such indemnified party or parties for legal costs and
expenses shall be limited to the reasonable legal costs and expenses of one such
separate counsel. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party pursuant to the provisions of said
paragraph a or b for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the proviso of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
d. Contribution. If for any reason the indemnification provided for
in paragraphs a and b is unavailable to an indemnified party or insufficient to
hold it harmless as contemplated by such paragraphs, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations; provided, however, that, in any such case, neither the
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Security Trustee, the Beneficiaries or any Initiating Holder will be required to
contribute any amount in excess of the sales price of all such Shares sold by or
on its behalf pursuant to such registration statement.
Promptly after receipt by the Security Trustee, the Beneficiaries or any
Initiating Holder of notice of the commencement of any action, suit or
proceeding in connection with a public offering of the Shares, such Security
Trustee, the Beneficiaries or any Initiating Holder will, if a claim for
contribution in respect thereof is able to be made against another party, notify
the contributing party of the commencement thereof. The omission to so notify
the contributing party will not relieve it from any liability which it may have
to any other party other than for contribution under the 1933 Act. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a contributing party of the commencement thereof, the contributing
party will be entitled to participate therein with the notifying party and any
other contributing party similarly notified.
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7. Transfer of Registration Rights. The respective registration rights
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and related obligations provided to the Security Trustee herein may be assigned
(a "Transfer") by the Security Trustee, to any Person that acquires some or all
of the Shares in connection with the exercise by the Security Trustee and the
Beneficiaries of their rights under the Loan Documents; provided, however, that
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(a) UIH shall be given written notice by the transferor thereof at the time of
such transfer stating the name and address of the transferee and identifying the
Shares with regard to which such rights are being transferred, (b) the
transferee shall agree in writing to assume the obligations of the transferor
hereunder and (c) the registration rights and related obligations may not be
transferred with any Shares sold in a registered offering.
8. Duty to Provide Information. In the event the any Initiating Holder
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requests a registration of Shares, the Initiating Holder shall provide all such
information and materials and shall take all such actions as may be reasonably
required in order to permit UIH to comply with all applicable requirements of
the SEC and applicable state securities laws, and to obtain any desired
acceleration of the effective date of such registration statement.
Specifically, UIH may require the Initiating Holder to furnish UIH with such
information regarding the Initiating Holder and the distribution of the Shares
as UIH may from time to time reasonably request in writing and as shall be
required by law or the SEC.
9. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the SEC which may permit the sale of the Shares
to the public without registration, UIH agrees to:
a. Keep public information available, as those term are understood and
defined in Rule 144 under the 1933 Act, at all times;
b. Use its best efforts to file with the SEC in a timely manner all
reports and other documents required of UIH under the Securities Exchange Act of
1934 (the "1934 Act"); and
c. Furnish to the Security Trustee and any other Holder(s), forthwith
upon request, a written statement by UIH as to its compliance with the reporting
requirements of the 1934 Act, a copy of the most recent annual or quarterly
report of UIH, and such other reports and documents so filed as the Security
Trustee and any other Holder(s) may reasonably request in availing themselves of
any rule or regulation of the SEC allowing the Shares to be sold without
registration.
10. Granting of Registration Rights. UIH shall not, without the prior
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written consent of the Security Trustee or following any Transfer, from Holders
of a majority of the Shares, enter into any agreement after the date hereof
granting any holder or prospective holder of any securities of the Company
registration rights with respect to such securities unless such new registration
rights, including standoff obligations, are subordinate to the registration
rights granted to Holders hereunder.
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11. Remedies. The UIH recognizes and agrees that if UIH fails to comply
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with its obligations under this Agreement, the Security Trustee may not have an
adequate remedy at law. Such failure will cause the Security Trustee
irreparable harm for which there may be no adequate remedy at law, and UIH
hereby consents to the issuance of an injunction in favor of the Security
Trustee by any court of competent jurisdiction. The right of the Security
Trustee to obtain an injunction hereunder shall not be considered a waiver of
any right on the part of the Security Trustee to recover damages and to assert
any other claims for remedies which the Security Trustee may have at law or in
equity. UIH agrees to bear any expenses incurred by the Security Trustee
including reasonable attorneys fees, in enforcing its rights under this
Agreement.
12. Notice of Misleading Prospectus. UIH shall immediately notify the
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Security Trustee or any Initiating Holder during any time when a registration
statement relating to the Shares is effective under the 1933 Act of the
happening of any event which comes to UIH's attention if as a result of such
event the prospectus included in such registration statement contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statement therein, in light of the circumstances under which they were
made, not misleading, and UIH shall promptly prepare and furnish to such
holders, and file with the SEC a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Shares, such prospectus
will not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
13. No Distribution of Misleading Prospectus. Each Holder of Shares that
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are included in a registration statement pursuant to this Agreement shall upon
receipt of any notice from UIH of the happening of any event described in
Section 11, such Holders will forthwith discontinue disposition of its Shares
pursuant to the registration statement covering such Shares until such Holder
receives copies of the supplemented or amended prospectus contemplated by
Section 12, and if so directed by UIH, such Holder will deliver to UIH (at UIH's
expense) all copies (including, without limitation, any and all drafts), other
than permanent file copies, then in such Holders' possession, of the prospectus
covering such Shares current at the time of receipt of such notice.
14. Covenant to Cooperate. Borrower agrees to take such actions and
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execute such documents as may be deemed necessary or desirable by the Security
Trustee or any Initiating Holder to effect the registration of the Shares
pursuant to this Agreement.
15. Termination of Registration Rights. The registration rights granted
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under Section 1 and Section 3 shall terminate upon the earlier of (i) the date
on which all of the Shares have been sold pursuant to an effective registration
statement under the 1933 Act or (ii) the date which is two years after the date
of the first transfer of any of the Shares pursuant to the exercise by the
Security Trustee and the Beneficiaries of their rights under the Loan Documents
in a transaction exempt from the registration and
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prospectus delivery requirements of the 1933 Act; or (iii) if there has been no
Transfer of any of the Shares in a transaction exempt from the registration and
prospectus delivery requirements of the 1933 Act, the date on which Borrower has
paid in full all amounts owed by it and Borrower and Guarantors have satisfied
completely all of their obligations under the Loan Documents.
16. Definition of Person. For purposes of this Agreement, the term
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"Person" shall mean an individual, partnership, limited liability company, joint
venture, trust or other entity or unincorporated organization.
17. The Deed. The Borrower and the Security Trustee hereby acknowledge
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that the covenants contained in this Agreement and the security and other
rights, titles and interests constituted by this Agreement and the Secured
Assets (as defined in the Deed) and all other moneys, property and assets paid
to the Security Trustee or held by the Security Trustee pursuant to or in
connection with this Agreement are held by the Security Trustee subject to and
on the terms of the trusts declared in the Deed.
18. Miscellaneous.
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a. Waivers and Amendments. This Agreement may be amended or
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modified in whole or in part only by a writing which makes reference to this
Agreement executed by UIH, Borrower and the Security Trustee. The obligations of
any party hereunder may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with the written consent of the
party claimed to have given the waiver; provided, however, that any waiver by
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any party of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
b. Entire Agreement. This Agreement sets forth the entire
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understanding of the parties hereto and supersedes all prior contracts,
agreements, arrangements, communications, discussions, representations, and
warranties, whether oral or written, among the parties with respect to the
subject matter hereof.
c. Governing Law. This Agreement shall in all respects be governed
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by and construed in accordance with the internal substantive laws of the State
of Colorado without giving effect to the principles of conflicts of law thereof.
d. Notices. Any notice, request or other communication required or
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permitted hereunder shall be in writing and be deemed to have been duly given if
personally delivered or five business days after being sent by registered or
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below.
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If to UIH:
United International Holdings, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
If to Borrower:
Xxxx Xxxxxxxxxxxx 000
XX Xxx 00000
0000 XX Xxxxxxxxx
Xxxxxxxxx: _________________
If to the Security Trustee:
Xxxxxx Xxxxx
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Manager, Loan Agency
with a copy to:
Xxxxxx Xxxxx
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Director, Communications Finance
Any party by written notice to the others may change the address of the persons
to whom notices or copies thereof shall be directed.
e. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
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f. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower and UIH may not assign or transfer their
rights hereunder without the prior written consent of the Security Trustee. The
Security Trustee shall be entitled to assign all or a portion of its rights,
benefits and obligations hereunder to any Person that acquires all or a portion
of the Shares pursuant to the exercise by the Security Trustee and the
Beneficiaries of their rights under the Loan Documents.
g. Third Parties. Nothing expressed or implied in this Agreement is
-------------
intended, or shall be construed, to confer upon or given any Person other than
the parties hereto any rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed, or have caused their
duly authorized representatives to execute, this Registration Rights Agreement
as of the date first written above.
UNITED INTERNATIONAL HOLDINGS INC.
By: /s/ J. XXXXXXX XXXXX
---------------------------------------
Name: J. Xxxxxxx Xxxxx
---------------------------------------
Title: Chief Financial Officer
---------------------------------------
BELMARKEN HOLDING B.V.
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
THE TORONTO-DOMINION BANK AS THE SECURITY TRUSTEE
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
13
