--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of October 25, 2004
Among
AIRGATE PCS, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
BANC OF AMERICA SECURITIES LLC
and
CREDIT SUISSE FIRST BOSTON LLC
as Initial Purchasers
First Priority Senior Secured Floating Rate Notes due 2011
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
1. Definitions..........................................................1
2. Exchange Offer.......................................................1
3. Shelf Registration...................................................1
4. Additional Interest..................................................1
5. Registration Procedures..............................................1
6. Registration Expenses................................................1
7. Indemnification and Contribution.....................................1
8. Rules 144 and 144A...................................................1
9. Underwritten Registrations...........................................1
10. Miscellaneous........................................................1
-i-
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of October 25, 2004, among AIRGATE PCS, INC., a Delaware corporation (the
"Company"), the subsidiaries of the Company that are listed on the signature
pages hereto (collectively, and together with any entity that in the future
executes a supplemental indenture pursuant to which such entity agrees to
guarantee the Notes (as hereinafter defined), the "Guarantors" and, together
with the Company, the "Issuers"), and BANC OF AMERICA SECURITIES LLC and CREDIT
SUISSE FIRST BOSTON LLC, as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
dated October 7, 2004 (the "Purchase Agreement"), which provides for, among
other things, the sale by the Company to the Initial Purchasers of $175,000,000
aggregate principal amount of the Company's First Priority Senior Secured
Floating Rate Notes due 2011 (the "Notes") guaranteed by the Guarantors (the
"Guarantees"). The Notes and the Guarantees are collectively referenced to
herein as the "Securities". In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuers have agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial Purchasers and
any subsequent holder or holders of the Securities. The execution and delivery
of this Agreement is a condition to the Initial Purchasers' obligation to
purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereto.
Advice: See the last paragraph of Section 5 hereto.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereto.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
-2-
Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 210th day after the Issue Date and (ii) any Shelf
Registration Statement, the 90th day after the Filing Date with respect thereto;
provided, however, that if the Effectiveness Date would otherwise fall on a day
that is not a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.
Effectiveness Period: See Section 3(a) hereto.
Event Date: See Section 4(b) hereto.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereto.
Exchange Offer: See Section 2(a) hereto.
Exchange Offer Registration Statement: See Section 2(a)
hereto.
Filing Date: (A) With respect to an Exchange Offer
Registration Statement, the 120th day after the Issue Date; and (B) with respect
to any Shelf Registration Statement (which may be applicable notwithstanding the
consummation of the Exchange Offer), the 30th day after the delivery of a Shelf
Notice as required pursuant to Section 2(c) hereof (or, if later, the 120th day
after the Issue Date); provided, however, that if the Filing Date would
otherwise fall on a day that is not a Business Day, then the Filing Date shall
be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture dated as of October 25, 2004, by and
between the Company, the Guarantors and The Bank of New York, as Trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Information: See Section 5(o) hereto.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereto.
-3-
Inspectors: See Section 5(o) hereto.
Issue Date: October 25, 2004, the date of original issuance of
the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereto.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereto.
Participating Broker-Dealer: See Section 2(b) hereto.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereto.
Private Exchange Notes: See Section 2(b) hereto.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(o) hereto.
Registrable Notes: Each Note (and the related Guarantees) upon
its original issuance and at all times subsequent thereto, each Exchange Note
(and the related guarantees) as to which Section 2(c)(iii) hereof is applicable
upon original issuance and at all times subsequent thereto and each Private
Exchange Note (and the related guarantees) upon original issuance thereof and at
all times subsequent thereto, until, in each case, the earliest to occur of (i)
a Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iii) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or such Private
Exchange Note (and the related guarantees), as the
-4-
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Private Exchange Note (and the related guarantees) that may
be resold without restriction under state and federal securities laws, (iii)
such Note, Exchange Note or Private Exchange Note (and the related guarantees),
as the case may be, ceases to be outstanding for purposes of the Indenture or
(iv) such Note, Exchange Note or Private Exchange Note (and the related
guarantees), as the case may be, may be resold without restriction pursuant to
Rule 144(k) (as amended or replaced) under the Securities Act.
Registration Statement: Any registration statement of the
Issuers that covers any of the Notes, the Exchange Notes or the Private Exchange
Notes (and the related guarantees, if any) filed with the SEC under the
Securities Act, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The United States Securities and Exchange Commission or
any successor agency thereto.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereto.
Shelf Registration: See Section 3(b) hereto.
Shelf Registration Statement: Any Registration Statement
relating to a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereto.
TIA: The Trust Indenture Act of 1939, as amended.
-5-
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange Notes
(and the related guarantees).
Underwritten registration or underwritten offering: A
registration in which Registrable Notes are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer.
(a) Unless the Exchange Offer would violate applicable law or
any applicable interpretation of the staff of the SEC, the Issuers shall file
with the SEC, no later than the Filing Date, a Registration Statement (the
"Exchange Offer Registration Statement") on an appropriate registration form
with respect to a registered offer (the "Exchange Offer") to exchange any and
all of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company (the "Exchange Notes") guaranteed by the Guarantors
that are identical in all material respects to the Securities, except that (i)
the Exchange Notes shall contain no restrictive legend thereon and (ii) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such other trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable laws. The Issuers shall
use their reasonable best efforts to (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to
the 30th Business Day following the effectiveness of the Exchange Offer
Registration Statement.
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
-6-
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act; (iii) neither the
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is an "affiliate" (as defined in Rule 405) of
the Company or, if it is an affiliate of the Company, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable and will provide information to be included in the Shelf
Registration Statement in accordance with Section 5 hereof in order to have
their Notes included in the Shelf Registration Statement and benefit from the
provisions regarding Additional Interest in Section 4 hereof; (iv) neither such
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is engaging in or intends to engage in a
distribution of the Exchange Notes; and (v) if such Holder is a Participating
Broker-Dealer, such Holder has acquired the Registrable Notes as a result of
market-making activities or other trading activities and that it will comply
with the applicable provisions of the Securities Act (including, but not limited
to, the prospectus delivery requirements thereunder).
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply solely
with respect to Registrable Notes that are Private Exchange Notes, Exchange
Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Issuers shall have no further obligation
to register Registrable Notes (other than Private Exchange Notes and Exchange
Notes as to which clause 2(c)(iii) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
-7-
The Issuers shall use their reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers upon the request of the
Initial Purchasers shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers, guaranteed by the
Guarantors that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the Exchange
Offer open for not less than 30 days after the date that notice of the
Exchange Offer is mailed to Holders (or longer if required by
applicable law);
(3) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(4) permit Holders to withdraw tendered Securities at any time
prior to 5:00 p.m., New York time, on the last Business Day on which
the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
-8-
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Securities, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Securities of such
Holder so accepted for exchange; provided that, in the case of any
Securities held in global form by a depositary, authentication and
delivery to such depositary of one or more replacement Securities in
global form in an equivalent principal amount thereto for the account
of such Holders in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuers; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA or is exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Securities shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Securities will have the right to vote or consent
as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Initial Purchasers or any
holder of Private Exchange Notes so requests in writing to the Company at any
time prior to the 20th day following the consummation of the Exchange Offer, or
(iii) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under state and federal securities laws (other than due
solely to the status of such Holder as an affiliate of the Issuers within the
meaning of the Securities Act) and so notifies the Company within 30 days after
such Holder first becomes aware of such restrictions, in the case of each of
clauses (i) to and including (iii) of this sentence, then the Issuers shall
promptly deliver to
-9-
the Holders and the Trustee written notice thereof (the "Shelf Notice") and
shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration.
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable file with the SEC a Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Notes (the "Initial Shelf Registration"). The Issuers
shall use their reasonable best efforts to file with the SEC the
Initial Shelf Registration on or prior to the applicable Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings).
The Issuers shall not permit any securities other than the Registrable
Notes and the Guarantees to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities
Act on or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the
date that is two years from the Issue Date or such shorter period
ending when all Registrable Notes covered by the Initial Shelf
Registration have been sold or cease to be outstanding in the manner
set forth and as contemplated in the Initial Shelf Registration or, if
applicable, a Subsequent Shelf Registration (the "Effectiveness
Period"); provided, however, that the Effectiveness Period in respect
of the Initial Shelf Registration shall be extended to the extent
required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein and shall be subject to reduction to the
extent that the applicable provisions of Rule 144(k) are amended or
revised to reduce the two year holding period set forth therein.
(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations.
If the Initial Shelf Registration or any Subsequent Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
Notes registered thereunder), the Issuers shall use their reasonable
best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend such Shelf Registration Statement
in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes
covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (each, a
-10-
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration
is filed, the Issuers shall use their reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep
such subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration
or any Subsequent Shelf Registration was previously continuously
effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes (or their counsel) covered by
such Registration Statement with respect to the information included
therein with respect to one or more of such Holders, or by any
underwriter of such Registrable Notes with respect to the information
included therein with respect to such underwriter.
4. Additional Interest.
(a) The Issuers and the Initial Purchasers agree that the
Holders will suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuers
agree to pay, jointly and severally, as liquidated damages, additional interest
on the Notes ("Additional Interest") under the circumstances and to the extent
set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed on or prior to the
Filing Date applicable thereto or (B) notwithstanding that the Issuers
have consummated or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf Registration is
not filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of $0.05
per week per $1,000 principal amount of Notes for the first 90 days
immediately following such applicable Filing Date, and such Additional
Interest rate shall increase by an additional $0.05 per week per $1,000
principal amount of Notes at the beginning of each subsequent 90-day
period; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by the SEC on
or prior to the Effectiveness Date applicable thereto or (B)
notwithstanding that the Issuers have consummated or will consummate
the Exchange Offer, the Issuers are required to file a Shelf
Registration and such Shelf Registration is not declared effective by
the SEC on or prior to the
-11-
Effectiveness Date applicable to such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Notes at a rate
of $0.05 per week per $1,000 principal amount of Notes for the first
90 days immediately following the day after such Effectiveness Date,
and such Additional Interest rate shall increase by an additional
$0.05 per week per $1,000 principal amount of Notes at the beginning
of each subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 30th Business Day after the effectiveness of
the Exchange Offer Registration Statement or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period,
then Additional Interest shall accrue on the principal amount of the
Notes at a rate of $0.05 per week per $1,000 principal amount of Notes
for the first 90 days commencing on the (x) the day following the 30th
Business Day after the effectiveness of the Exchange Offer Registration
Statement, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (B) above, and such
Additional Interest rate shall increase by an additional $0.05 per week
per $1,000 principal amount of Notes at the beginning of each such
subsequent 90-day period;
provided, however, that (1) Additional Interest on the Notes may not accrue
under more than one of the foregoing clauses (i)-(iii) at any one time and at no
time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate $0.30 per week per $1,000 principal amount of Notes; provided,
further, however, that (1) upon the filing of the applicable Exchange Offer
Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause (ii)
of this Section 4), or (3) upon the exchange of the Exchange Notes for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement which had ceased to
remain effective (in the case of (iii)(B) of this Section 4), Additional
Interest on the Notes in respect of which such events relate as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue.
(b) The Issuers shall notify the Trustee within three Business
Days after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to clause (a) of this Section 4 will be payable
in cash quarterly on each January 15, April 15, July 15 and October 15 (to the
holders of record on January 1, April 1, July 1 and October 1 immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue. The amount of Additional Interest
will be de-
-12-
termined based on a year made up of 360 days consisting of twelve 30-day months.
No Additional Interest shall accrue with respect to Notes that are not
Registrable Notes.
5. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, each
of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable
Filing Date a Registration Statement or Registration Statements as
prescribed by Section 2 or 3 hereof, and use its reasonable best
efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however, that if (1)
such filing is pursuant to Section 3 hereof or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period relating thereto from whom any Issuer has
received written notice that it will be a Participating Broker-Dealer
in the Exchange Offer, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers shall
furnish to and afford the Holders of the Registrable Notes covered by
such Registration Statement (with respect to a Registration Statement
filed pursuant to Section 3 hereof) or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least three Business Days prior to such filing). The Issuers shall not
file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period, the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the
related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant
to Rule 424; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the
-13-
disposition of all securities covered by such Registration Statement
as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus. Other than
during any Blackout Period, the Issuers shall be deemed not to have
used their reasonable best efforts to keep a Registration Statement
effective if any Issuer voluntarily takes any action that would result
in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or permitted
by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom any Issuer has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes (with respect to
a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Issuers, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true and correct in all
material respects, (iv) of the receipt by any Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event, the existence of any condition or any information
becoming known that makes any statement regarding a material fact made
in such Registration Statement or related
-14-
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires
the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case
of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the Issuers'
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested during the Effectiveness Period by the managing
underwriter or underwriters (if any), the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering or any Participating
Broker-Dealer, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment with the SEC as
soon as practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof)
and to each such Participating Broker-Dealer who so requests (with
respect to any such Registration Statement) and to their respective
counsel and each managing underwriter, if any, at the sole expense of
the Issuers, one conformed copy of the Registration Statement or
Registration Statements
-15-
and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if
any, and dealers, if any, in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable best efforts to
register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer
shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jur-
-16-
isdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
(subject to applicable requirements contained in the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Registrable
Notes 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 or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Issuers will
cooperate in all reasonable respects with the selling Holder in its
efforts to receive such registration or approval.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), any such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
-17-
(l) Use its reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies (unless
such Notes are already so rated), if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the Exchange Notes, as the case may be,
or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Securities, and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers (including any
acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings
of debt securities similar to the Securities, and confirm the same in
writing if and when requested; (ii) obtain the written opinions of
counsel to the Issuers, and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten
offerings; (iii) obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of the Issuers, or of any business
acquired by the Issuers, for which financial statements and financial
data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Securities;
and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to
the sellers and underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures reasonably acceptable
to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any) with respect to all
parties to be indemnified pursuant thereto. The
-18-
above shall be done at each closing under such underwriting agreement,
or as, and to the extent, required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any Initial Purchaser, any
selling Holder of such Registrable Notes being sold (with respect to a
Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, or underwriter (any
such Initial Purchaser, Holders, Participating Broker-Dealers,
underwriters, attorneys, accountants or agents, collectively, the
"Inspectors"), upon written request, at the offices where normally
kept, during reasonable business hours, all pertinent financial and
other records, pertinent corporate documents and instruments of the
Issuers and subsidiaries of the Company (collectively, the "Records"),
as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers and any of their respective
subsidiaries, if any, to supply all information ("Information")
reasonably requested by any such Inspector in connection with such due
diligence responsibilities. Each Inspector shall agree in writing that
it will keep the Records and Information confidential and that it will
not disclose any of the Records or Information that any Issuer
determines, in good faith, to be confidential and notifies the
Inspectors in writing are confidential unless (i) the disclosure of
such Records or Information is necessary to avoid or correct a material
misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records or Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such Records or Information is necessary or advisable, in
the opinion of counsel for any Inspector, in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or the Purchase Agreement, or
any transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records or Information has
been made generally available to the public other than through
disclosure by an Inspector or an "affiliate" (as defined in Rule 405
under the Securities Act) thereof; provided, however, that prior notice
shall be provided as soon as practicable to any Issuer of the potential
disclosure of any information by such Inspector pursuant to clause (i)
or (ii) of this sentence to permit the Issuers to undertake appropriate
action to prevent disclosure of such Records or Information at the
Issuers' expense; provided, further, that, to the extent the foregoing
shall be made contemporaneously by more than two Holders,
-19-
there shall be one attorney (plus any local counsel) and one
accountant retained by all Holders to make such investigation.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes; and
in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes (if any) to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable best efforts to cause such trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders with regard to
any applicable Registration Statement, a consolidated earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any fiscal
quarter (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, or if so requested by the Trustee, obtain an opinion of
counsel to the Issuers, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders
of Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, the related guarantee and the
related indenture constitute legal, valid and binding obligations of
the Issuers, enforceable against the Issuers in accordance with their
respective terms, subject to customary exceptions and qualifications.
If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company), in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuers
shall xxxx, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; in no event shall
such Registrable Notes be marked as paid or otherwise satisfied.
-20-
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Issuers all information required to
be disclosed in order to make the information previously furnished to the
Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company (i) of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Notes covered by such Registration Statement or Prospectus or Exchange Notes to
be sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of any
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the Issuers that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Issuers shall give any such
notice, each of the Applicable Period and the Effectiveness Period shall be
extended by the
-21-
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
6. Registration Expenses.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions, which shall be paid by the applicable Holder) shall be
borne by the Issuers, whether or not the Exchange Offer Registration Statement
or any Shelf Registration Statement is filed or becomes effective or the
Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in the case of a Shelf Registration, reasonable
fees and disbursements of one special counsel for all of the sellers of
Registrable Notes (exclusive of any counsel retained pursuant to Section 7
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(o)(iii) hereof (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Issuers
desire such insurance, (vii) fees and expenses of all other Persons retained by
the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) any fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting
-22-
agreements, indentures and any other documents necessary to comply with this
Agreement (other than fess and expenses of counsel to the underwriters of any
underwritten offering).
7. Indemnification and Contribution.
(a) Each of the Issuers agree, jointly and severally, to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
and each Person, if any, who controls such Person or its affiliates within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a
"Participant") against any losses, claims, damages or liabilities to which any
Participant may become subject under the Act, the Exchange Act or otherwise,
insofar as any such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto); or
(ii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) or any other document or any
amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading;
and will reimburse, as incurred, the Participant for any reasonable legal or
other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
will not be liable in any such case (i) to the extent that any 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 any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any amendment or supplement thereto in reliance upon and
in conformity with information relating to any Participant furnished to the
Issuers by such Participant specifically for use therein, (ii) if such loss,
claim, damage or liability arises as a result of use of a Shelf Registration
Statement or the related Prospectus during a period when such use has been
suspended pursuant to Section 5(c), provided that the Company has complied with
its obligations in Section 5(c) and (iii) if such Participant sold to the person
asserting the claim the Registrable Notes or Exchange Notes that are the subject
of such claim and such untrue statement or alleged untrue statement or omission
or alleged omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not con-
-23-
tain any other untrue statement or omission of a material fact that was the
subject matter of the related proceeding and it is established by the Issuers in
the related proceeding that such Participant failed to deliver or provide a copy
of the Prospectus (as amended or supplemented) to such Person with or prior to
the confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance with the Issuers with Section 7 of this Agreement. The indemnity
provided for in this Section 7 will be in addition to any liability that the
Issuers may otherwise have to the indemnified parties. The Issuers shall not be
liable under this Section 7 for any settlement of any claim or action effected
without its prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to
indemnify and hold harmless the Issuers, their directors, their officers and
each Person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact necessary to make the
statements therein, in the case of the Prospectus, in light of the circumstances
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 made in reliance upon and in conformity with written
information concerning such Participant, furnished to the Issuers by the
Participant, specifically for use therein; and subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses incurred by the Issuers or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. The indemnity provided for in
this Section 7 will be in addition to any liability that the Participants may
otherwise have to the indemnified parties. The Participants shall not be liable
under this Section 7 for any settlement of any claim or action effected without
their consent, which shall not be unreasonably withheld. The Issuers shall not,
without the prior written consent of such Participant, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Participant is or could have been a party, or indemnity could have been sought
hereunder by any Participant, unless such settlement (A) includes an
unconditional written release of the Participants, in form and substance
reasonably satisfactory to the Participants, from all liability on claims that
are the subject matter of such proceeding and (B) does not include any statement
as to an admission of fault, culpability or failure to act by or on behalf of
any Participant.
-24-
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or actions) or (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such
-25-
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 7,
in which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and such Participant on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
of the Notes received by the Issuers bear to the total net profit received by
such Participant in connection with the sale of the Notes. The relative fault of
the parties 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 Issuers
on the one hand, or the Participants on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Participant shall be liable, in the aggregate, for any amount in excess of
the discount granted or the commission paid by the Company as set forth in the
Purchase Agreement with respect to the Registrable Notes held by such
Participant, or in the case of the Exchange Notes, the Registrable Notes
exchanged for such Notes, less the aggregate amount of any damages that such
Participant has otherwise been required to pay by reason of the untrue or
alleged untrue statements or the omissions or alleged omissions to state a
material fact, and 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. For purposes of
this paragraph (d), each person, if any, who controls a Participant within the
meaning of Section 15 of the
-26-
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Participants, and each director of any Issuer, each officer of any Issuer
and each person, if any, who controls any Issuer within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.
8. Rules 144 and 144A.
For so long as the Registrable Notes remain outstanding, each
of the Issuers covenants and agrees that it will, upon the request of any Holder
or beneficial owner of Registrable Notes, make available such information
necessary to permit sales pursuant to Rule 144A. Each of the Issuers further
covenants and agrees, for so long as any Registrable Notes remain outstanding
that it will take such further action as any Holder of Registrable Notes may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Notes without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144(k) under the
Securities Act and Rule 144A.
9. Underwritten Registrations.
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as of
the date hereof, and the Issuers shall not, after the date of this Agreement,
enter into any agreement with respect to any of their securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Issuers' other issued
and outstanding securities under any such agreements. The Issuers will not enter
into any agreement with respect to any of their securities which will grant to
any Person piggy-back registration rights with respect to any Registration
Statement.
-27-
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of (I) the Company, and (II)(A) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxx
-28-
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
(ii) if to the Initial Purchasers, at the address(es)
specified and with a copy as specified in Section 10(d)(i);
(iii) if to the Issuers, at the address as follows:
AirGate PCS, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxx, General Counsel
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxx Xxx, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
-29-
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuers
or their affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Issuers on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or
-30-
successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AIRGATE PCS, INC.
By:
--------------------------------
Name:
Title:
AGW LEASING COMPANY, INC.
AIRGATE NETWORK SERVICES, LLC
AIRGATE SERVICE COMPANY, INC.
By:
--------------------------------
Name:
Title:
S-2
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISS FIRST BOSTON LLC
By:
--------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------
Name:
Title:
