Exhibit 4.10
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AMERICAN TOWER CORPORATION
9 3/8% Senior Notes Due 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 31, 2001
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(an affiliate of Credit Suisse First Boston Corporation)
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Banc Xxxx. Xxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
TD Securities (USA) Inc.
BNY Capital Markets, Inc.
Chase Securities Inc.
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
Banc of America Securities LLC
BMO Xxxxxxx Xxxxx Inc.
Credit Lyonnais Securities (USA) Inc.
McDonald Investments Inc.
Xxxxxx Xxxxxx Partners LLC
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-and-
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
American Tower Corporation, a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to certain initial
purchasers (the "Purchasers") upon the terms set forth in a purchase agreement
dated January 24, 2001 (the "Purchase Agreement"), its 9 3/8% Senior Notes Due
2009 (the "Securities"), relating to the initial placement of the Securities
(the "Initial Placement"). To induce the Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
agrees with you for your benefit and the benefit of the holders from time to
time of the Securities (including the Purchasers) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
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their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Advice" shall have the meaning set forth in Section 4(c).
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control of
a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Time", in the case of (i) an Exchange Offer Registration
Statement, shall mean the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the Exchange
Offer Registration Statement otherwise becomes effective and (ii) a Shelf
Registration Statement shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180 day period
following the consummation of the Registered Exchange Offer (exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement).
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"Exchanging Dealer" shall mean any Holder (which may include any Purchaser)
that is a Broker-Dealer and elects to exchange for New Securities any Securities
that it acquired for its own account as a result of market-making activities or
other trading activities (but not directly from the Company or any Affiliate of
the Company) for New Securities.
"Final Memorandum" shall mean the offering circular related to the
Securities, as amended or supplemented as of the date hereof, including any and
all exhibits thereto and any information incorporated by reference therein.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of January 31, 2001, between the Company and The Bank of New York, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Issue Date" shall mean the date of the original issuance of the
Securities.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Letter Agreement" shall mean the Letter, dated January 25, 2001, from the
Company to the Purchasers relating to the Reallocation Purchases and the
Reallocation Amounts.
"Majority Holders" shall mean, when no Registration Statement is filed
under this Agreement, the Holders of a majority of the aggregate principal
amount of Securities outstanding and shall mean, when a Registration Statement
is filed under this Agreement, the Holders of a majority of the aggregate
principal amount of Securities registered under the Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company identical in all
material respects to the Securities (except that the special interest provisions
and the transfer restriction provisions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities
Indenture.
"New Securities Indenture" shall mean an indenture between the Company and
the New Securities Trustee, identical in all material respects to the Indenture
(except that the special interest provisions and the transfer restriction
provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Purchasers, as trustee with respect to the New Securities
under the New Securities Indenture.
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"Notice and Questionnaire" shall have the meaning set forth in Section 3(c)
hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Purchaser" shall have the meaning set forth in the preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the Company to
issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registration Default" shall have the meaning set forth in Section 6(a)
hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Special Interest" shall have the meaning set forth in Section 6(a) hereof.
"Special Interest Rate" shall have the meaning set forth in Section 6(a)
hereof.
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"Transfer Restricted Securities" shall mean each Security and New Security
until, (i) in the case of any Security exchanged by a person other than a
Broker-Dealer for a freely transferable New Security in the Registered Exchange
Offer, the date on which such Security is exchanged, (ii) in the case of any New
Security held by a Broker-Dealer, following the exchange by such Broker-Dealer
in the Registered Exchange Offer of a Security for such New Security, the date
on which such New Security is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) in the case of any
Security or New Security that has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement, the date of
such disposition, or (iv) in the case of any Security or New Security that is
distributed to the public pursuant to Rule 144 under the Act or is saleable
pursuant to Rule 144(k) under the Act, the date on which such Security or New
Security is distributed or is saleable, as the case may be.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"underwriter" shall mean any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. The Company shall prepare and, not later than
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90 days following the Issue Date (or if such 90th day is not a Business Day, the
next succeeding Business Day), shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 180 days of the
Issue Date (or if such 180th day is not a Business Day, the next succeeding
Business Day).
(a) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for New Securities (assuming that such Holder is not an
Affiliate of the Company, acquires the New Securities in the ordinary course of
such Holder's business, has no arrangements with any Person to participate in
the distribution of the New Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such New Securities from and after their receipt without any limitations
or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(b) In connection with the Registered Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30
Business Days and not more than 45 Business Days after the date notice
thereof is mailed to the Holders (or, in each case, longer if required by
applicable law);
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(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required, under the Act to ensure that it is available for
sales of New Securities by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan in New York City, which
may be the Trustee, the New Securities Trustee or an Affiliate of either of
them;
(v) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day on which
the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating that
the Company is conducting the Registered Exchange Offer in reliance on the
position of the Commission in Exxon Capital Holdings Corporation (pub.
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avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
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1991) and Shearman & Xxxxxxxx (pub. avail. July 2, 1993); and (B) including
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a representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the New Securities to be
received in the Registered Exchange Offer and that, to the best of the
Company's information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in the ordinary
course of business and has no arrangement or understanding with any Person
to participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(c) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder so accepted
for exchange.
(d) Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission in
Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital
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Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxxxx & Xxxxxxxx (July 2,
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1993) and similar no-action letters; and (y) must comply with the registration
and prospectus delivery requirements of the Act in connection with any secondary
resale transaction
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which must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as applicable,
of Regulation S-K under the Act if the resales are of New Securities obtained by
such Holder in exchange for Securities acquired by such Holder directly from the
Company or one of its Affiliates. Accordingly, as a condition to its
participation in the Registered Exchange offer, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company in the
Letter of Transmittal in the Registered Exchange Offer or by other means that,
at the time of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in
the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the New
Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company.
(e) If any Purchaser determines that it is not eligible to participate in
the Registered Exchange Offer with respect to the exchange of Securities
constituting any portion of an unsold allotment, at the request of such
Purchaser, the Company shall issue and deliver to such Purchaser or the Person
purchasing New Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Purchaser, in exchange for such
Securities, a like principal amount of New Securities. The Company shall use its
best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number
for such New Securities as for New Securities issued pursuant to the Registered
Exchange Offer.
3. Shelf Registration. If (i) due to any change in law or applicable
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interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof, or (ii) for any other reason
the Registered Exchange Offer is not consummated within 225 days of the Issue
Date (or, if such 225th day is not a Business Day, the next succeeding Business
Day) or the Exchange Offer Registration Statement is not declared effective
within 180 days of the Issue Date (or if such 180th day is not a Business Day,
the next succeeding Business Day); (iii) any Purchaser so requests with respect
to Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (iv) any Holder (other than a Purchaser) is not
eligible to participate in the Registered Exchange Offer or does not receive
freely tradeable New Securities in the Registered Exchange Offer other than by
reason of such Holder being an Affiliate of the Company; or (v) in the case of
any Purchaser that participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Purchaser does not receive
freely tradeable New Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that (x) the requirement
that a Purchaser deliver a Prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in
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the Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
New Securities being not "freely tradeable"), the Company shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(a) (i) The Company shall as promptly as practicable (but in no event more
than 90 days after so required or requested pursuant to this Section 3 (or, if
such 90th day is not a Business Day, the next succeeding Business Day)), file
with the Commission and thereafter (but in no event more than 180 days after the
date the Company was required or requested to make such filing pursuant to this
Section 3 (or, if such 180th day is not a Business Day, the next succeeding
Business Day)) use its reasonable best efforts to cause to be declared effective
under the Act a Shelf Registration Statement relating to the offer and sale of
the Securities or the New Securities, as applicable, by the Holders thereof from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however,
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that no Holder (other than a Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided further, that with respect to New
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Securities received by a Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Company may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of its
obligations under this subsection with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
Notwithstanding anything in this Section 3, Special Interest shall accrue only
in accordance with the provisions of Section 6 hereof.
(ii) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by the
Act, in order to permit the Prospectus forming part thereof to be usable by
Holders from the date the Shelf Registration Statement is declared effective by
the Commission until the earlier of: (i) such date as all the Securities covered
by the Shelf Registration Statement have been sold, or (ii) the date on which
all of the Securities held by persons that are not Affiliates of the Company may
be resold without registration pursuant to Rule 144(k) under the Act (such
period being called the "Shelf Registration Period"). The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Company promptly thereafter complies with the requirements of
Section 4(k) hereof, if applicable.
(b) Not less than 30 calendar days prior to the Effective Time of any Shelf
Registration Statement required under this Agreement, the Company shall mail the
Notice and Questionnaire (the "Notice and Questionnaire") attached as Annex E
hereto to the Holders of Transfer Restricted Securities; no Holder shall be
entitled to be named as a selling securityholder
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in the Shelf Registration Statement as of the Effective Time, and no Holder
shall be entitled to use the prospectus forming a part thereof for resales of
Securities at any time, unless such Xxxxxx has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for response set forth
therein; provided, however, that holders of Transfer Restricted Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed and signed
Notice and Questionnaire to the Company.
(c) After the Effective Time of any Shelf Registration Statement required
to be filed under this Agreement, Holders of Transfer Restricted Securities who
did not timely return a Notice and Questionnaire to the Company may return a
Notice and Questionnaire at any time and may request to be included in such
Shelf Registration Statement. If:
(i) the Company can include such Holder with respect to its Transfer
Restricted Securities by means of a prospectus supplement filed pursuant to
Rule 424(b) of the Act or by means a registration statement filed pursuant
to Rule 462(b) of the Act, then the Company shall file such Rule 424(b)
supplement or Rule 462(b) registration statement with the Commission within
10 Business Days of its receipt of the Notice and Questionnaire;
(ii) the Company, in the opinion of its counsel, cannot include such
Holder with respect to its Transfer Restricted Securities by means of a
prospectus supplement to the prospectus contained as part of such effective
Shelf Registration Statement or by means a related registration statement
filed pursuant to Rule 462(b) of the Act, the Company shall promptly take
any action reasonably necessary to enable such a Holder to use a
registration statement for resale of Transfer Restricted Securities,
including, without limitation, any action necessary to identify such
Holders or selling securityholder in a new Shelf Registration Statement
which the Company shall promptly file and cause to be declared effective to
cover the resale of the Transfer Restricted Securities that are the subject
of such request.
(d) In the event of a Shelf Registration Statement, in addition to
the information required to be provided in the Notice and Questionnaire, the
Company may require Holders to furnish to the Company additional information
regarding such Holder and such Holder's intended method of distribution of
Securities as may be required in order to comply with the Securities Act. Each
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Holder to the Company or
of the occurrence of any event in either case as a result of which any
prospectus relating to the Shelf Registration Statement contains or would
contain an untrue statement of a material fact regarding such Holder or such
Holder's intended method of disposition of such Securities or omits to state any
material fact regarding such Holder or such Holder's intended method of
disposition of such Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information or
required so that such prospectus shall not contain, with respect to such Holder
or the disposition of such Securities, an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
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4. Additional Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior to the
filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use its reasonable
best efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus contained in
the Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by a Purchaser, include the information required by
Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names
of the Holders that propose to sell Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) The Company shall advise you, the Holders of Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the Company a telephone
or facsimile number and address for notices, and, if requested by you or any
such Holder or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company shall have
remedied the basis for such suspension):
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(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or supplement
to the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation of any proceeding for such
purpose;
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading; and
(vi) each Holder of Securities agrees by acquisition of such
Securities that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(ii), (iii),
(iv), and (v) hereof, such Holder will forthwith discontinue any and all
dispositions of such Securities by means of the Registration Statement or
Prospectus until such Xxxxxx's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(b), or until it is advised in
writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto provided, however, that this paragraph shall not
prohibit any Holder from engaging in dispositions of the Securities through
means other than pursuant to the Registration Statement or Prospectus, as
long as such dispositions comply with applicable laws.
(d) The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement or the
qualification of the securities therein for sale in any jurisdiction at the
earliest possible time.
(e) The Company shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all
material incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company consents to the use
of the Prospectus or any amendment or
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supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each Purchaser, each Exchanging
Dealer and each other Person required to deliver a Prospectus during the
Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Purchaser, any Exchanging Dealer and any such other Person that
may be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall arrange, if
necessary, for the qualification of the Securities or the New Securities for
sale under the laws of such jurisdictions as any Holder shall reasonably request
and will maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering pursuant to a
Shelf Registration Statement, in any such jurisdiction where it is not then so
subject or otherwise subject itself to taxation in any such jurisdiction.
(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing New
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii)
through (v) above, the Company shall promptly prepare a post-effective amendment
to the applicable Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that, as thereafter
delivered to Purchasers of the securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
-------- -------
may delay preparing, filing and distributing any such supplements or amendments
(and continue the suspension of the use of the prospectus) if the Company
determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the
12
Company (whether or not a final decision has been made to undertake such
transaction) or (ii) involve initial or continuing disclosure obligations that
are not in the best interests of the Company's shareholders at such time;
provided, further, that neither such delay nor such suspension with respect to
-------- -------
all matters in clause (i) or (ii) shall extend for a period of more than 30 days
in any three-month period or more than 90 days for all such periods in any
twelve-month period and shall not affect the Company's obligations to pay
Special Interest as contemplated by Section 6 hereof.
(l) In such circumstances, the period of effectiveness of the Exchange
Offer Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be extended by
the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) to and including the date when the
Purchasers, the Holders of the Securities and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this Section.
(m) Not later than the effective date of any Registration Statement, the
Company shall provide CUSIP numbers for the Securities or the New Securities, as
the case may be, registered under such Registration Statement and provide the
Trustee with printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(n) The Company shall comply with all applicable rules and regulations of
the Commission and shall make generally available to its security holders no
later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year), an earnings
statement satisfying the provisions of Section 11(a) of the Act and Rule 158
thereunder (or any similar rule under the Act) for a period of at least 12
months beginning on the first day of the first fiscal quarter after the
effective date of the applicable Registration Statement.
(o) The Company shall cause the Indenture or the New Securities Indenture,
as the case may be, to be qualified under the Trust Indenture Act in a timely
manner.
(p) The Company may require each Holder of securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement. The Company may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(q) In the case of any Shelf Registration Statement, the Company shall
enter into such agreement and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 (or such other provisions and procedures acceptable
to the Majority Holders and the Managing Underwriters, if any, with respect to
all parties to be indemnified pursuant to Section 7).
13
(r) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder, any underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such underwriter
all relevant and reasonably requested financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
-------- -------
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, who have provided such
accountants with a representation letter if required to do so under
Statement on Auditing Standards No. 72 in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions
14
contained in the underwriting agreement or other agreement entered into by
the Company; and
(vii) after the Effective Time of the Shelf Registration Statement,
upon the request of any Holder, promptly send a Notice and Questionnaire to
such Holder; provided that the Company shall not be required to take any
action to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Securities except in accordance with
Section 3(c) hereof.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the Company
shall:
(i) make reasonably available for inspection by each Purchaser, and
any attorney, accountant or other agent retained by such Purchaser, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by such Purchaser or any such
attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
--------
however, that any information that is designated in writing by the Company,
-------
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by such Purchaser or any such attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to such Purchaser, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Purchaser and its counsel, addressed to
such Purchaser, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are,
15
or are required to be, included in the Registration Statement), addressed
to such Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings as permitted by Statement on Auditing Standards No.
72, or if requested by such Purchaser or its counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35, covering matters requested by such Purchaser or
its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by such Purchaser or its counsel, including those to evidence
compliance with Section 4(k) and with conditions customarily contained in
underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(t) If a Registered Exchange Offer is to be consummated, upon delivery of
the Securities by Holders to the Company (or to such other Person as directed by
the Company) in exchange for the New Securities, the Company shall mark, or
caused to be marked, on the Securities so exchanged that such Securities are
being canceled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(u) The Company will use its reasonable best efforts (i) if the Securities
have been rated prior to the initial sale of such Securities, to confirm such
ratings will apply to the Securities or the New Securities, as the case may be,
covered by a Registration Statement; or (ii) if the Securities were not
previously rated, to cause the Securities covered by a Registration Statement to
be rated with at least one nationally recognized statistical rating agency, if
so requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(v) In the event that any Broker-Dealer shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc.) thereof,
whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist such
Broker-Dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a "qualified
independent underwriter" (as defined in such Rules) to participate in the
preparation of the Registration Statement, to exercise usual standards of
due diligence with respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities;
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 7 hereof;
and
16
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements of
such Rules.
(w) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Company shall bear all expenses incurred in
---------------------
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Purchasers for the reasonable fees and
disbursements of one firm or counsel acting in connection therewith.
Notwithstanding the foregoing, the Holders shall pay all agency fees and
commissions and underwriting discounts and commissions and the fees and
disbursements of any counsel or other advisors or experts retained by such
Holders (severally or jointly), other than the counsel specifically referred to
above.
6. Special Interest Under Certain Circumstances. The Company, the
--------------------------------------------
Purchasers and each Holder of Transfer Restricted Securities agree by
acquisition of such Securities that the Holders of Transfer Restricted
Securities will suffer damages if a Registration Default (as defined below)
occurs and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Company, the Purchasers and each Holder of
Transfer Restricted Securities agree that the following "Special Interest" (as
defined below) provisions shall constitute liquidated damages in the event of a
"Registration Default" (as defined below) and shall constitute the sole remedy
of the Purchasers and each Holder of Transfer Restricted Securities for any
Registration Defaults.
(a) In accordance with the terms of the Securities, additional interest
("Special Interest") with respect to the Securities and New Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a "Registration Default"):
(i) on or prior to the 90th day following the Issue Date, neither
the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed with the Commission;
(ii) on or prior to the 180th day following the Issue Date, neither
the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been declared effective;
(iii) on or prior to the 225th day following the Issue Date, neither
the Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but (A) such Registration Statement
thereafter ceases to be effective or (B) such Registration Statement or the
related prospectus ceases
17
to be usable in connection with resales of Transfer Restricted Securities
during the periods specified herein because either (1) any event occurs as a
result of which the related prospectus forming part of such Registration
Statement would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or (2) it
shall be necessary to amend such Registration Statement or supplement the
related prospectus, to comply with the Act or the Exchange Act or the
respective rules thereunder;
Each of the foregoing shall constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a result
of any action or inaction by the Commission; provided, however, that the Company
-------- -------
shall in no event be required to pay liquidated damages for more than one
Registration Default at any given time.
Special Interest shall accrue on the Securities or New Securities, as the
case may be, over and above the interest set forth in the title of the
Securities from and including the date on which any such Registration Default
shall occur to but excluding the date on which all such Registration Defaults
shall have been cured, at a rate of 0.25% per annum (the "Special Interest
Rate") for the first 90-day period immediately following the occurrence of such
Registration Default. The Special Interest Rate shall increase by an additional
0.25% per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum Special Interest Rate of
1.0% per annum.
(b) Any amounts of Special Interest due pursuant to Section 6(a) will be
payable in cash on the regular interest payment dates with respect to the
Securities. The amount of Special Interest will be determined by multiplying the
applicable Special Interest Rate by the principal amount of the Securities and
further multiplied by a fraction, the numerator of which is the number of days
such Special Interest Rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the denominator
of which is 360.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Holder of Securities or New Securities, as the case may
be, covered by any Registration Statement (including each Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each Person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or the Prospectus, or in any amendment thereof 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 not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably
18
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
-------- -------
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute as provided in Section
7(d) to Losses of any underwriter of Securities or New Securities, as the case
may be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the Purchasers
and the selling Holders provided in this Section 7(a) and shall, if requested by
any Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless the Company each of its directors each of its
officers who signs such Registration Statement and each Person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and is prejudiced thereby; 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
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably
19
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes (i) an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to or an
admission of fault or failure to act by or on behalf of any indemnified party.
No indemnifying party shall be liable under subsections (a), (b) or (c) of this
Section for any settlement of any claim or action effected without its consent,
which consent will not be unreasonably withheld; provided, however, that such
-------- -------
indemnifying party has notified in writing the indemnified party of its refusal
to accept such settlement within 30 days of its receipt of a notice from the
indemnified party outlining the terms of such settlement.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided, however,
-------- -------
that in no case shall any Purchaser of any Security or New Security be
responsible, in the aggregate, for any amount in excess of the purchase discount
or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, as set
forth in the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Registration Statement which
resulted in such Losses, nor shall any subsequent Holder of any Security or New
Security be responsible, in the aggregate, for any amount in excess of the net
proceeds received by such Holder from the resale of such securities under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth in the Final Memorandum and (y) the total amount of additional
interest which the Company was not required to pay as a result of registering
the securities covered by the Registration Statement which resulted in such
Losses. Benefits received by the Purchasers shall be deemed to be equal to the
total purchase discounts and commissions as set forth in the
20
Final Memorandum, and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any alleged untrue statement or omission relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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 Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling Persons referred to in
this Section hereof, and will survive the sale by a Holder of securities covered
by a Registration Statement.
8. Underwritten Registrations. In connection with any Shelf Registration
--------------------------
Statement required under this Agreement, the Company may enter into one or more
underwriting agreements, engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution, and take such
other actions in connection therewith as the Majority Holders shall request in
order to expedite or facilitate the disposition of such Securities.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders
provided that such Managing Underwriters shall be reasonably satisfactory to the
Company.
(b) No Person may participate in any underwritten offering pursuant to any
Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
21
9. No Inconsistent Agreements. The Company has not, as of the date hereof,
--------------------------
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may10. not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders (or, after the consummation of any Registered Exchange Offer in
accordance with Section 2 hereof, of New Securities); provided that, with
respect to any matter that directly or indirectly affects the rights of any
Purchaser hereunder, the Company shall obtain the written consent of each such
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with copies in like manner to each of
Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxxxxx, Xxxxxx, Xxxxxxxx Securities
Corporation.
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the Purchase
Agreement with a copy to Company counsel at the following address:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Facsimile: (000) 000-0000
All such notices and communications shall be deemed to have been duly given
when received.
The Purchasers or the Company by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
22
12. Successors. This Agreement shall inure to the benefit of and be binding
----------
upon the successors and assigns of each of the parties, including, without the
need for an express assignment or any consent by the Company thereto, subsequent
Holders of Securities and the New Securities. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Securities and the New
Securities, and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto. At such time as Credit Suisse First
Boston Corporation succeeds to the business of Donaldson, Lufkin, Xxxxxxxx
Securities Corporation, whether by merger, sale of assets or otherwise, Credit
Suisse First Boston shall be considered a successor of Xxxxxxxxx, Xxxxxx,
Xxxxxxxx Securities Corporation.
13. Counterparts. This agreement may be in signed counterparts, each of
------------
which shall an original and all of which together shall constitute one and the
same agreement.
14. Headings. The headings used herein are for convenience only and shall
--------
not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
16. Severability. In the event that any one of more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, Etc. Whenever the consent or approval
-----------------------------------
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Purchasers.
Very truly yours,
AMERICAN TOWER CORPORATION
By:
------------------------------------
Name:
Title:
24
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Banc Xxxx. Xxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
TD Securities (USA) Inc.
BNY Capital Markets, Inc.
Chase Securities Inc.
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
Banc of America Securities LLC
BMO Xxxxxxx Xxxxx Inc.
Credit Lyonnais Securities (USA) Inc.
McDonald Investments Inc.
Xxxxxx Xxxxxx Partners LLC
By: Xxxxxxxxx, Lufkin, Xxxxxxxx Securities Corporation
By:
-----------------------
Name:
Title:
- and-
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-----------------------
Name:
Title:
For themselves and the other several Purchasers named in Schedule I to the
Purchase Agreement and the Reallocation Purchasers named in and Annex I of the
Letter Agreement.
25
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter: within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in exchange for Securities where such Securities were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration Date
(as defined herein) and ending on the close of business 180 days after the
Expiration Date, it will make this Prospectus available to any Broker-Dealer for
use in connection with any such resale. See "Plan of Distribution".
26
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution".
27
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business 180
days after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until date that 180 days from Issue Date, 2001 all dealers
effecting transactions in the New Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of New Securities
by brokers-dealers. New Securities received by Broker-Dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
New Securities and any commissions or concessions received by any such Persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
28
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
--------------------------------------------
Address:
--------------------------------------------
--------------------------------------------
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has not made arrangements or understandings with any Person to
participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange
for Securities, it represents that the Securities to be exchanged for New
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such New Securities; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Act.
29
AMERICAN TOWER CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depositary Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the American Tower Corporation (the
"Company") 9?% Senior Notes due 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interest in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact American Tower
Corporation, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000, Attention:
General Counsel.
AMERICAN TOWER CORPORATION
(Notice of Registration Statement and Selling
Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the "Registration
Rights Agreement") between American Tower Corporation (the "Company") and the
Purchasers named therein. Pursuant to the American Tower Corporation
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form ___ (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's 9?% Senior Notes due 2009, (the "Securities"). A copy of the
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below) is
entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel of the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Transfer Restricted Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf and Registration Statement
and (ii) may not use the Prospectus forming a part thereof for resales of
Transfer Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequence of being name or not
being named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "TRANSFER RESTRICTED SECURITIES" is defined in the Registration Rights
Agreement.
2
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth as Annex F to the
Registration Rights Agreement. The Selling Securityholder hereby provides the
following information to the Company and represents and warrants that such
information is accurate and complete:
3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Holder (if not the same as in (a) above) of
Transfer Restricted Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Transfer Restricted Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities beneficially owned:
_____ CUSIP No(s) of such Transfer Restricted Securities_____
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned: ____ CUSIP No(s). of such other
Securities_____
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
_____ CUSIP No(s). of such Transfer Restricted Securities to be
included in the Shelf Registration Statement_____
(4) Beneficial Ownership of other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
(6) Plan of Distribution:
State any exceptions here:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Transfer Restricted Securities listed above in Item (3) only
as follows (if at all): Such Transfer
4
Restricted Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Transfer Restricted Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Transfer Restricted
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the
Transfer Restricted Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Transfer Restricted Securities
short and deliver Transfer Restricted Securities to close out such short
positions, or loan or pledge Transfer Restricted Securities to broker-dealers
that in turn may sell such securities
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus. In accordance with the
Selling Securityholder's obligation under Section 3(e) of the Exchange and
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, or air courier guaranteeing
overnight delivery as follows:
5
(i) To the Company:
--------------------
--------------------
--------------------
--------------------
--------------------
(ii) With a copy to:
--------------------
--------------------
--------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer Restricted
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
ANNEX F
Notice of Transfer Pursuant to Registration Statement
America Tower Corporation
The Bank of New York
[Address]
Attention: Trust Officer
Re: 9 3/8% Senior Notes Due 2009
Dear Sirs:
Please be advised that ____________________has transferred
$________________ aggregate principal amount of the above-referenced Notes
pursuant to an effective Registration Statement on Form [ ] (File No. 333- )
filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
----------------------------------------
(Name)
By: (Authorized Signature)
