EXHIBIT 10.2
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of October 28, 1997
among
TRANSTEL PASS THROUGH TRUST
as the Issuer
TRANSTEL S.A.
as the Company
and
BT ALEX. XXXXX INCORPORATED
as Initial Purchaser
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions..................................................... 1
2. Exchange Offer.................................................. 6
3. Shelf Registration.............................................. 10
4. Additional Interest............................................. 11
5. Registration Procedures......................................... 13
6. Registration Expenses........................................... 23
7. Indemnification................................................. 24
8. Rules 144 and 144A.............................................. 28
9. Underwritten Registrations...................................... 29
10. Miscellaneous................................................... 29
(i)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
October 28, 1997, among Transtel Pass Through Trust, a special purpose Delaware
business trust (the "Trust"), Transtel S.A., a sociedad anonima organized under
-----
the laws of the Republic of Colombia (the "Company"), and BT Alex. Xxxxx
-------
Incorporated (the "Initial Purchaser").
-----------------
This Agreement is entered into in connection with the Purchase
Agreement, dated October 21, 1997, among the Company, the Trust, Global
Telecommunications Operations, Inc., and the Initial Purchaser (the "Purchase
--------
Agreement") which provides for the sale by the Trust to the Initial Purchaser,
---------
and the purchase by the Initial Purchaser from the Trust, of $150,000,000
aggregate principal amount of the Trust's 12 1/2% Pass Through Trust
Certificates due 2007 (the "Certificates"). The gross proceeds of the sale of
------------
the Certificates will be used immediately upon issuance by the Trust to purchase
$150,000,000 aggregate principal amount of the Company's 12 1/2% Senior Notes
due 2007 (the "Notes"). In order to induce the Initial Purchaser to enter into
-----
the Purchase Agreement, each of the Trust and the Company has agreed to provide
the registration rights set forth in this Agreement for the benefit of the
Initial Purchaser and its direct and indirect transferees and assigns. The
Company's and the Trust's execution and delivery of this Agreement is a
condition precedent to the Initial Purchaser's obligation to purchase the
Certificates under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
-----------
have the following meanings:
"Additional Interest" has the meaning set forth in Section 4(a)
-------------------
hereof.
"Advice" has the meaning set forth in the last paragraph of Section 5
------
hereof.
"Agreement" has the meaning set forth in the introductory paragraphs
---------
hereto.
"Applicable Period" has the meaning set forth in Section 2(b) hereof.
-----------------
"Business Day" means any day excluding Saturday, Sunday and any day
------------
which shall be in the City of New York or the State of Delaware a legal
holiday or a day on which banking institutions are authorized by law or
other governmental actions to close.
"Company" has the meaning set forth in the introductory paragraphs
-------
hereto.
"Effectiveness Date" means, with respect to the Exchange Offer
------------------
Registration Statement, the 210th day after the Issue Date and, with
respect to the Shelf Registration Statement, the 60th day after delivery of
the Shelf Notice.
"Effectiveness Period" has the meaning set forth in Section 3(a)
--------------------
hereof.
"Event Date" has the meaning set forth in Section 4(b) hereof.
----------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Agent" means Marine Midland Bank, as exchange agent under
--------------
this Agreement with respect to the Exchange Offer.
"Exchange Certificates" has the meaning set forth in Section 2(a)
---------------------
hereof.
"Exchange Offer" has the meaning set forth in Section 2(a) hereof.
--------------
"Exchange Offer Registration Statement" has the meaning set forth in
-------------------------------------
Section 2(a) hereof.
"Filing Date" means with respect to the Exchange Offer Registration
-----------
Statement, the 150th day after the Issue Date and, with respect to the
Shelf Registration Statement, the 30th day after delivery of the Shelf
Notice.
"Holder" means any holder of a Registrable Certificate or Registrable
------
Certificates.
"Indemnified Person" has the meaning set forth in Section 7(c) hereof.
------------------
-2-
"Indemnifying Person" has the meaning set forth in Section 7(c)
-------------------
hereof.
"Indenture" means the Indenture, dated as of October 28, 1997 between
---------
the Company and Marine Midland Bank, as Indenture Trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
"Indenture Trustee" means Marine Midland Bank, as the trustee under
-----------------
the Indenture.
"Initial Purchaser" has the meaning set forth in the introductory
-----------------
paragraphs hereto.
"Inspectors" has the meaning set forth in Section 5(o) hereof.
----------
"Issue Date" means the date on which the Certificates were sold to the
----------
Initial Purchaser pursuant to the Purchase Agreement.
"NASD" has the meaning set forth in Section 5(v) hereof.
----
"Notes" has the meaning set forth in the introductory paragraphs
-----
hereto.
"Participant" has the meaning set forth in Section 7(a) hereof.
-----------
"Participating Broker-Dealer" has the meaning set forth in Section
---------------------------
2(b) hereof.
"Pass Through Trustee" means Wilmington Trust Company, not on its
--------------------
individual capacity but solely as the pass through trustee under the Trust
Agreement.
"Person" means an individual, trustee, corporation, partnership, joint
------
stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
"Private Exchange" has the meaning set forth in Section 2(b) hereof.
----------------
"Private Exchange Certificates" has the meaning set forth in Section
-----------------------------
2(b) hereof.
-3-
"Prospectus" means the prospectus included in any Registration
----------
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Purchase Agreement" has the meaning set forth in the introductory
------------------
paragraphs hereto.
"Records" has the meaning set forth in Section 5(o) hereof.
-------
"Registrable Certificates" means each Certificate upon original
------------------------
issuance of the Certificate and at all times subsequent thereto, each
Exchange Certificate as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private
Exchange Certificate upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Certificate, Exchange
Certificate or Private Exchange Certificate, as the case may be, the
earliest to occur of (i) a Registration Statement (other than, with respect
to any Exchange Certificate as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such
Certificate, Exchange Certificate or such Private Exchange Certificate, as
the case may be, having been declared effective by the SEC and such
Certificate, Exchange Certificate or such Private Exchange Certificate, as
the case may be, having been disposed of in accordance with such effective
Registration Statement, (ii) such Certificate, Exchange Certificate or
Private Exchange Certificate, as the case may be, being eligible for sale
to the public pursuant to Rule 144, (iii) such Certificate having been
exchanged for an Exchange Certificate pursuant to an Exchange Offer which
may be resold without restriction under state and federal securities laws,
or (iv) such Certificate, Exchange Certificate or Private Exchange
Certificate, as the case may be, ceasing to be outstanding for purposes of
the Trust Agreement.
"Registration Default" has the meaning set forth in Section 4(a)
--------------------
hereof.
"Registration Statement" means any registration statement of the
----------------------
Company, including, but not limited to, the Exchange Offer Registration
Statement, filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
-4-
statement, including post effective amendments, all exhibits, and all
material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 415" means Rule 415 promulgated under the Securities Act, as
--------
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
--------
such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers
and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus delivery
requirements of the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
---------
such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
"SEC" means the U.S. Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the SEC promulgated thereunder.
"Shelf Notice" has the meaning set forth in Section 2(c) hereof.
------------
"Shelf Registration Statement" has the meaning set forth in Section
----------------------------
3(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
---------------------------------------
Section 3(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
---
"Trust Agreement" means the Amended and Restated Trust Agreement,
---------------
dated as of October 28, 1997, among the Company and Wilmington Trust
Company, as Pass Through Trustee, and Marine Midland Bank, as registrar and
paying agent thereunder, pursuant to which the Certificates are being
issued, as amended or supplemented from time to time in accordance with the
terms thereof.
-5-
"underwritten registration" or "underwritten offering" means a
------------------------- ---------------------
registration in which securities of the Company are sold to an underwriter
for reoffering to the public.
2. Exchange Offer. (a) The Company, together with the Trust,
--------------
shall, at the Company's expense, use its best efforts to file with the SEC no
later than the Filing Date, a registration statement under the Securities Act
with respect to a registered offer to exchange (the "Exchange Offer") any and
--------------
all of the Registrable Certificates (other than Private Exchange Certificates,
if any) for a like aggregate principal amount of certificates issued by the
Trust which are identical in all material respects to the Certificates (the
"Exchange Certificates"), except that the Exchange Certificates shall have been
---------------------
registered pursuant to an effective Registration Statement under the Securities
Act and shall contain no restrictive legend thereon, and which are entitled to
the benefits of the Trust Agreement or a trust agreement which is identical in
all material respects to the Trust Agreement. Each Exchange Certificate will
represent a pro rata interest in any and all of the assets and held by the Trust
from time to time, including the Notes and all payments of principal, interest
and premium, if any, and additional amounts, if any, made in respect of the
Notes. The Exchange Certificates shall be registered under the Securities Act
on an appropriate form (the "Exchange Offer Registration Statement") and the
-------------------------------------
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company and the Trust shall use its
best efforts to cause the Exchange Offer Registration Statement to be declared
effective by the SEC under the Securities Act on or before the Effectiveness
Date. Upon the Exchange Offer Registration Statement being declared effective,
the Trust shall offer the Exchange Certificates in exchange for the surrender of
the Certificates. The Company shall use its best efforts to keep the Exchange
Offer open for at least 30 calendar days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders. For
purposes of this Section 2(a) only, if after such Exchange Offer Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Certificates pursuant to the Exchange Offer is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent and warrant that any Exchange Certificate received by such
Holder in connection with the Exchange Offer will be acquired by such Holder in
the ordinary course of such Holder's business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Certificates in violation of the provisions of the Securities Act, and that such
Holder is not an affiliate of the Company
-6-
or the Trust within the meaning of the Securities Act or, if it is an affiliate,
it will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Registrable
------- --------
Certificates that are Private Exchange Certificates and Exchange Certificates
held by Participating Broker-Dealers, and the Company shall have no further
obligation to register Registrable Certificates pursuant to Section 3 hereof
(other than Private Exchange Certificates and other than in respect of any
Exchange Certificates as to which clause 2(c)(iv) hereof applies). No
securities other than the Exchange Certificates shall be included in the
Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus included in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reason ably acceptable to the Initial Purchaser in form and substance, which
shall contain a summary statement of the positions taken or policies made by the
Staff of the Division of Corporation Finance of the SEC (the "Staff") with
-----
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Certificates received by such broker-dealer pursuant to the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
---------------------------
publicly disseminated by the Staff or whether such positions or policies, in the
judgment of the Initial Purchaser, represent the prevailing views of the Staff.
Such "Plan of Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may offer
and resell the Exchange Certificates.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein as may be required by the Securities Act, in order to permit
such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Certificates; provided, however, that such period shall not exceed
-------- -------
180 days after the Exchange Offer Registration Statement is declared effective
(or such longer period if extended pursuant to the last paragraph of Section 5
hereof) (the "Applicable Period").
-----------------
If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Certificates acquired by it and having, or which are reasonably likely
to be determined to have, the status of an unsold allotment in the initial
distribution, or any
-7-
other Holder is not entitled to participate in the Exchange Offer, the Company
upon the request of the Initial Purchaser or any such Holder shall
simultaneously with the delivery of the Exchange Certificates in the Exchange
Offer, issue and deliver to the Initial Purchaser and any such Holder, in
exchange (the "Private Exchange") for such Certificates held by such Initial
----------------
Purchaser and any such Holder, a like principal amount of certificates issued by
the Trust that are identical in all material respects to the Exchange
Certificates (the "Private Exchange Certificates") (and which are entitled to
-----------------------------
the benefits of the Trust Agreement or a trust agreement which is identical in
all material respects to the Trust Agreement); provided, however, the Company
-------- -------
shall not be required to effect such exchange if, in the written opinion of
counsel for the Company (a copy of which shall be in form and substance
reasonably satisfactory to the Initial Purchaser and be delivered to the Initial
Purchaser and any Holder affected thereby), such exchange cannot be effected
without registration under the Securities Act. The Private Exchange
Certificates shall bear the same CUSIP number as the Exchange Certificates.
Interest on the Senior Notes underlying the Exchange Certificates and
the Private Exchange Certificates will accrue from (A) the later of (i) the last
interest payment date on which interest was paid on the Senior Notes underlying
the surrendered Certificates surrendered in exchange therefor or (ii) if the
Certificates are surrendered for exchange on a date in a period which includes
the record date for an interest payment date on such Senior Notes to occur on or
after the date of such exchange and as to which interest will be paid, the date
of such interest payment date or (B) if no interest has been paid on such Senior
Notes, from the Issue Date.
In connection with the Exchange Offer, the Company, on behalf of the
Trust, shall:
(i) mail to each Holder a copy of the Prospectus included in
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(iii) permit Holders to withdraw tendered Certificates at any time
prior to the close of business, New York time, on the last business day on
which the Exchange Offer shall remain open; and
(iv) otherwise comply in all material respects with all applicable
laws, rules and regulations.
-8-
As soon as practicable after close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Certificates tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver to the Pass Through Trustee for cancellation all
Certificates so accepted for exchange; and
(iii) cause the Pass Through Trustee to authenticate and deliver
promptly to each Holder of Certificates, Exchange Certificates or Private
Exchange Certificates, as the case may be, equal in principal amount to the
Certificates of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or the Private Exchange,
as the case may be, does not violate applicable law, rule, regulation or any
applicable interpretation of the Staff, (ii) no action or proceeding is
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Company or the Trust to proceed with the
Exchange Offer or the Private Exchange and no material adverse development has
occurred in any existing action or proceeding with respect to the Company or the
Trust and (iii) all U.S. governmental approvals have been obtained, which
approvals the Company deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Certificates and the Private Exchange Certificates may be
issued under (i) the Trust Agreement or (ii) a trust agreement identical in all
material respects to the Trust Agreement, which in either event shall provide
that the Exchange Certificates shall not be subject to the transfer restrictions
set forth in the Trust Agreement. The Trust Agreement or such trust agreement
shall provide that the Exchange Certificates, the Private Exchange Certificates
and the Certificates shall vote and consent together on all matters as one class
and that neither the Exchange Certificates, the Private Exchange Certificates or
the Certificates will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law, rule, regulation or in
currently prevailing interpretations of the Staff, the Company is not permitted
to effect an Exchange Offer, (ii) the Exchange Offer is not consummated within
240 days of the Issue Date, (iii) any holder of Private Exchange Certificates so
requests within 210 days after the consummation of the Private Exchange, or (iv)
in the case of any Holder that
-9-
participates in the Exchange Offer, such Holder does not receive Exchange
Certificates on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the status of
such Holder as an affiliate of the Company or the Trust within the meaning of
the Securities Act) and so notifies the Company within 60 days after such Holder
first becomes aware of any such restriction and provides the Company with a
reasonable basis for its conclusion, in the case of each of clauses (i), (ii),
(iii) and (iv) of this sentence, then the Company shall promptly deliver to the
Holders of Registrable Certificates and the Pass Through Trustee written notice
thereof (the "Shelf Notice") and shall use its best efforts to file a Shelf
------------
Registration Statement pursuant to Section 3 hereof.
3. Shelf Registration. If a Shelf Notice is delivered as
------------------
contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company, together with the Trust, shall,
------------------
at the Company's expense, file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Certificates (the "Shelf Registration Statement"). If the
----------------------------
Company shall not have filed an Exchange Offer Registration Statement, the
Company shall use its best efforts to file with the SEC the Shelf Registration
Statement as promptly as practicable, but no later than the Filing Date. The
Shelf Registration Statement shall be on Form F-1 or another appropriate form
permitting registration of such Registrable Certificates for resale by Holders
in the manner or manners designated by them (including, without limitation, one
or more underwritten offerings). The Company shall not permit any securities
other than the Registrable Certificates to be included in the Shelf Registration
Statement or any Subsequent Shelf Registration Statement.
The Company shall use its best efforts to cause the initial Shelf
Registration Statement to be declared effective by the SEC under the Securities
Act on or prior to the Effectiveness Date after the delivery of the Shelf Notice
and to keep the Shelf Registration Statement continuously effective under the
Securities Act until the second anniversary of its effective date, subject to
extension pursuant to the last paragraph of Section 5 hereof (the "Effectiveness
-------------
Period"), or such shorter period ending when (i) all Registrable Certificates
------
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the initial Shelf Registration Statement or (ii) a
Subsequent Shelf Registration Statement covering all of the Registrable
Certificates has been declared effective by the SEC under the Securities Act;
provided, however, that the Effectiveness Period in respect of the initial Shelf
Registration Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirement of Rule
174 under the Securities Act and as otherwise provided herein.
-10-
(b) Subsequent Shelf Registrations. If the initial Shelf
------------------------------
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Certificates registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Certificates (a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration
---------------------------------------
Statement is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective by the SEC under the
Securities Act as soon as practicable after such filing and to keep such Shelf
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Shelf Registration Statement or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "Shelf Registration
------------------
Statement" means the Shelf Registration Statement and any Subsequent Shelf
---------
Registration Statement.
(c) Supplements and Amendments. The Company shall promptly
--------------------------
supplement and amend the Shelf Registration Statement (including any prospectus
contained therein) if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
if required by the Securities Act, or if reasonably requested by the Holders of
a majority in aggregate principal amount of the Registrable Certificates covered
by such Shelf Registration Statement or by any underwriter of such Registrable
Certificates.
4. Additional Interest. (a) The Company and the Initial Purchaser
-------------------
agree that the Holders of Certificates will suffer damages if either of the
Company or the Trust fails to fulfill its obligations under Section 2 or Section
3 hereof and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Company agrees to pay, as liquidated
damages, additional interest on the Notes ("Additional Interest") (which
-------------------
Additional Interest will be paid by the Company to the Trust and distributed by
the Trust to the Holders of the Certificates) under the circumstances and to
the extent set forth below (each such event referred to in clauses (i) through
(iii) below, a "Registration Default" and each of which shall be given
--------------------
independent effect):
(i) if the Exchange Offer Registration Statement has not been
filed on or prior to the Filing Date, then commencing on the 151st day
after the Issue Date, Additional Interest shall accrue on the Notes (and,
therefore, the
-11-
Certificates) over and above the accrued interest on the Notes (and
therefore the Certificates) at a rate of 0.50% per annum for the first 90
days immediately following such 151st day;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date, then commencing
on the 211th day after the Issue Date, Additional Interest shall accrue on
the Notes (and, therefore, the Certificates) over and above the accrued
interest at a rate of 0.50% per annum for the first 90 days immediately
following such 211th day; and
(iii) if (A) the Trust has not exchanged Exchange Certificates for
all Certificates validly tendered in accordance with the terms of the
Exchange Offer, (B) the Shelf Registration Statement has not been filed on
or prior to the Filing Date, (C) the Shelf Registration Statement is not
declared effective on or prior to the 60th day following the delivery of
the Shelf Notice or (D) the Shelf Registration Statement or the Exchange
Offer Registration Statement, as the case may be, has been declared
effective and ceases to be effective, then Additional Interest shall accrue
on the Notes (and, therefore, the Certificates) over and above the accrued
interest at a rate of 0.50% per annum for the first 90 days commencing on
the day after such Registration Default;
such Additional Interest rate, in the case of each of (i), (ii) and (iii) above,
to increase by an additional 0.50% per annum at the beginning of each subsequent
90-day period; provided, however, that in no event shall the amount of
-------- -------
Additional Interest exceed 2.00% in the aggregate pursuant to this Section 4;
provided further, that (A) upon the filing of the Exchange Offer Registration
----------------
Statement (in the case of clause (i) of this Section 4(a)), (B) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) of this Section 4(a)), or (C) upon the exchange of Exchange
Certificates for all Certificates tendered (in the case of clause (iii)(A) of
this Section 4(a)), or upon the filing of a Shelf Registration Statement (in the
case of clause (iii)(B) of this Section 4(a)), or upon the effectiveness of the
Shelf Registration Statement (in the case of clause (iii)(C) of this Section
4(a)), or upon the effectiveness of the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, which had ceased to remain
effective (in the case of clause (iii)(D) of this Section 4(a)), Additional
Interest on the Notes (and, therefore, the Certificates) as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue until such time as the Shelf Registration Statement, or the Exchange
Offer Registration Statement, as the case may be, shall again cease to remain
effective whereupon the Additional Interest shall resume to accrue in the manner
and for the time periods specified in this Section 4(a).
-12-
(b) The Company shall notify the Pass Through Trustee and the
Indenture Trustee of a Registration Default within one business day after any
such Registration Default (an "Event Date"). Any amounts of Additional Interest
----------
due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable
in cash semi-annually on each May 1 and November 1 (to the holders of record on
the April 15 and October 15 immediately preceding such dates), commencing with
the first such date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined by multiplying the
applicable rate of Additional Interest by the principal amount of the
Registrable Certificates, multiplied by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360.
5. Registration Procedures. In connection with the filing of any
-----------------------
Registration Statement pursuant to Section 2 or 3 hereof, the Company and the
Trust shall effect such registrations to permit the sale of the securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company and the Trust hereunder, the Company and the Trust shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section
2 or 3 hereof, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that, if (i) such filing is to be made pursuant to
-------- -------
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement to be filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Certificates during the Applicable Period,
before filing any such Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to counsel
selected by the Holders of a majority in aggregate principal amount of the
Registrable Certificates (the "Holders' Counsel"), counsel for such
----------------
Participating Broker-Dealer and the managing underwriters, if any, and the
Holders of the Registrable Certificates covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five business
days prior to such filing, or such later date as is reasonable under the
circumstances). The Company shall not file any Registration Statement or
Prospectus or any amendments or
-13-
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Certificates covered by such Registration
Statement and the Holders' Counsel, or any such Participating Broker-Dealer
and its counsel, as the case may be, or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented as required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus. The Company
shall be deemed not to have used its best efforts to keep a Registration
Statement effective during the Applicable Period if it voluntarily takes
any action that would result in selling Holders of the Registrable
Certificates covered thereby or Participating Broker-Dealers seeking to
sell Exchange Certificates not being able to sell such Registrable
Certificates or such Exchange Certificates during that period unless such
action is required by applicable law.
(c) If (i) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Certificates during the Applicable Period, notify
the selling Holders of Registrable Certificates and Holders' Counsel, or
each such Participating Broker-Dealer and their counsel, as the case may
be, and the managing underwriters, if any, promptly (but in any event
within two business days), (i) when a Prospectus or any Prospectus
supplement or post-effective amendment thereto has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when
the same has become effective under the Securities Act (including in such
notice a written statement that any Holder may, upon request, obtain, at
the sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment thereto including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of
any
-14-
stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary Prospectus or
the initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Certificates or resales of
Exchange Certificates by Participating Broker-Dealers the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement), contemplated by Section 5(n) hereof, to the
knowledge of the Company, cease to be true and correct in all material
respects, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Certificates or the Exchange Certificates to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, or any information becoming known that makes any statement made in
such Registration Statement, or any post-effective amendment thereto,
Prospectus or any supplement or post-effective amendment thereto, or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Company's determination that a post-
effective amendment to a Registration Statement would be appropriate.
(d) If (i) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Certificates during the Applicable Period, use its
best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Certificates or the
Exchange Certificates to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction, and, if any such order
-15-
is issued, to use its best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable
Certificates being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) promptly incorporate in a supplement to
the Prospectus or post-effective amendment thereto such information as the
managing underwriter or underwriters (if any), their counsel, such Holders,
Holders' Counsel, any Participating Broker-Dealer or their counsel
determine is reasonably necessary to be included therein, (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(f) If (i) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Certificates during the Applicable Period, furnish
to each selling Holder of Registrable Certificates, Holders' Counsel and to
each such Participating Broker-Dealer who so requests and its counsel and
each managing underwriter, if any, at the sole expense of the Company, one
conformed copy of the Registration Statement or Registration Statements and
each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (i) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Certificates during the Applicable Period, deliver
to each selling Holder of Registrable Certificates and Holders' Counsel, or
each such Participating Broker-Dealer and its counsel, as the case may be,
and the underwriters, if any, at the sole expense of the Company, as many
copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the
-16-
last paragraph of this Section 5, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Certificates or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Certificates covered by, or the sale by Participating Broker-
Dealers of the Exchange Certificates pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Certificates or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Certificates during the Applicable Period, use its best efforts to
cooperate with the selling Holders of Registrable Certificates and Holders'
Counsel or each such Participating Broker-Dealer and its counsel, as the
case may be, the managing underwriter or underwriters, if any, and their
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Certificates
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably
request; provided, however, that where Exchange Certificates held by
-------- -------
Participating Broker-Dealers or Registrable Certificates are offered other
than through an underwritten offering, the Company agrees to cause the
Company's counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Certificates held by Participating Broker-Dealers or the Registrable
Certificates covered by the applicable Registration Statement; provided,
--------
however, that the Company shall not be required (A) to qualify generally
-------
to do business in any jurisdiction where it is not then so qualified, (B)
to take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) to subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Certificates and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Certificates to be sold, which certificates shall not bear any restrictive
legends and shall be in a form
-17-
eligible for deposit with The Depository Trust Company; and enable such
Registrable Certificates to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
request.
(j) Use its best efforts to cause the Registrable Certificates
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Certificates, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such registration
statement and the granting of such approvals.
(k) If (i) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Certificates during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Company, a supplement
or post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Certificates being sold thereunder or to the purchasers of the Exchange
Certificates to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Certificates
covered by a Registration Statement or the Exchange Certificates, as the
case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Certificates covered by such Registration Statement or the
Exchange Certificates, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Certificates, (i) provide the Pass Through
Trustee with
-18-
certificates for the Registrable Certificates in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Certificates.
(n) In connection with any underwritten offering of Registrable
Certificates pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Registrable Certificates and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Certificates and, in such connection, (i)
make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Registrable
Certificates, and confirm the same in writing if and when requested; (ii)
use best efforts to obtain the written opinions of counsel to the Company
and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) use best
efforts to obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
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 or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such
------------
other matters as reasonably requested by the managing underwriter or
underwriters as permitted by the Statement on Auditing Standards No. 72;
and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Certificates covered by such Registration Statement
and the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section.
-19-
The above shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder.
(o) If (i) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Certificates during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Certificates being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Certificates, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the "Inspectors"), at the
----------
offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and instruments
of the Company and each of its subsidiaries (collectively, the "Records")
-------
as shall be reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such
Registration Statement; provided, however, that all information shall be
-------- -------
kept confidential by each such Inspector, except to the extent that (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is, in the
opinion of counsel for any Inspector, necessary or advisable in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of, based
upon, relating to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder; provided, however, that prior
-------- -------
notice be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (ii) or
this clause (iii) to permit the Company to obtain a protective order (or
waive the provisions of this paragraph (o)) and that such Inspector shall
take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holders or any Inspector, or
(iv) the information in such Records otherwise has been made generally
available to the public. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
-20-
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such
information is generally available to the public. Each selling Holder of
such Registrable Certificates and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company to undertake appropriate
action to prevent disclosure of the Records deemed confidential at the
Company's sole expense.
(p) Provide a pass through trustee for the Registrable Certificates or
the Exchange Certificates, as the case may be.
(q) Cause the Indenture for the Notes to be qualified under the TIA
not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Certificates; and in
connection therewith, cooperate with the Indenture Trustee under the
Indenture and the Holders of the Registrable Certificates, to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its
best efforts to cause the Indenture Trustee to execute, all documents as
may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner.
(r) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Certificates are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(s) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company, in a form customary for under
written transactions, addressed to the Pass Through Trustee for the benefit
of all Holders of Registrable Certificates participating in the Exchange
Offer or the Private Exchange, as the case may be, that the Exchange
Certificates or Private Exchange Certificates, as the case may be, and the
related trust agreement
-21-
constitute legal, valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their respective terms, subject to
customary exceptions and qualifications.
(t) Upon consummation of an Exchange Offer or Private Exchange, obtain
an opinion of counsel to the Company, addressed to the Pass Through Trustee
for the benefit of all Holders of Registrable Certificates participating in
the Exchange Offer or a Private Exchange, as the case may be, that the
Trust is not an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended, and the rules and registrations
thereunder.
(u) If an Exchange Offer or a Private Exchange is to be consummated
upon delivery of the Registrable Certificates by Holders to the Company (or
to such other Person as directed by the Company) in exchange for the
Exchange Certificates or the Private Exchange Certificates, as the case may
be, the Company shall xxxx, or cause to be marked, on such Registrable
Certificates that such Registrable Certificates are being cancelled in
exchange for the Exchange Certificates or the Private Exchange
Certificates, as the case may be; in no event shall such Registrable
Certificates be marked as paid or otherwise satisfied.
(v) Cooperate with each seller of Registrable Certificates covered by
any Registration Statement, Holders' Counsel and each underwriter, if any,
participating in the disposition of such Registrable Certificates and its
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
----
(w) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Certificates and/or
Registrable Certificates covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Registrable Certificates as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Certificates as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Certificates of any
seller who fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any registration pursuant to a
Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
-22-
Each Holder of Registrable Certificates and each Participating Broker-
Dealer agrees by acquisition of such Registrable Certificates or Exchange
Certificates to be sold by such Participating Broker-Dealer, as case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Certificates covered by such Registration Statement or Prospectus or Exchange
Certificates to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, 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 and, if so directed by the Company, such
Holder or Participating Broker-Dealer, as the case may be, will deliver to the
Company all copies, other than permanent file copies, then in such Holder's or
Participating Broker-Dealer's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, each of the Effectiveness Period
and the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Certificates covered by such
Registration Statement or Exchange Certificates to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses. (a) All fees and expenses incident to the
---------------------
performance of or compliance with this Agreement by the Company or the Trust
shall be borne by the Company whether or not the Exchange Offer is consummated
or a Shelf Registration Statement is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering, (B) fees with respect to filings
with the SEC, and (C) fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the Registrable
Certificates or Exchange Certificates and determination of the eligibility of
the Registrable Certificates or Exchange Certificates for investment under the
laws of such jurisdictions (x) where the holders of Registrable Certificates are
located, in the case of the Exchange Certificates, or (y) as provided in Section
5(h) hereof, in the case of Registrable Certificates or Exchange Certificates to
be sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of printing
certificates for Registrable Certificates or Exchange Certificates in a form
eligible for deposit with The Depository Trust Company and of
-23-
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Certificates included in any
Registration Statement or in respect of Registrable Certificates or Exchange
Certificates to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, the Exchange Agent, the
Indenture Trustee, the Trust and the Pass-Through Trustee and reasonable fees
and disbursements of Holders' counsel (subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
------------
required by or incident to such performance), (vi) rating agency fees, (vii)
Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement and (xiii)
fees and expenses of the Pass Through Trustee, Indenture Trustee, and the
Exchange Agent.
(b) The Company shall reimburse the Holders of the Registrable
Certificates being registered in a Shelf Registration Statement for the
reasonable fees and disbursements of Holders' counsel (in addition to
appropriate local counsel) and other out-of-pocket expenses of such Holders of
Registrable Certificates incurred in connection with the registration and sale
of the Registrable Certificates.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Holder of Registrable Certificates and each Participating Broker-
Dealer selling Exchange Certificates during the Applicable Period, the officers
and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from and against any and
-----------
all losses, claims, damages and liabilities (including, without limitation, and
subject to Section 7(c) below, the reasonable legal fees and other expenses
actually incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any pre-
-24-
liminary Prospectus, or caused by, arising out of or based upon any omission or
alleged omission to state therein 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,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished to the Company in writing by such Participant expressly for use
therein; provided, however, that the Company shall not be required to indemnify
-------- -------
any such Person if such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense suffered or
incurred by the Participants resulted from any action, claim or suit by any
Person who purchased Registrable Certificates or Exchange Certificates which are
the subject thereof from such Participant and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Certificates or Exchange
Certificates sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 5 of
this Agreement. Any amounts advanced to an Indemnified Person (as hereafter
defined) pursuant to this Section 7 shall be promptly refunded if it shall be
finally determined that such Indemnified Person was not entitled to such
indemnification.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each Person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Participant,
but only with reference to information relating to such Participant furnished to
the Company in writing by such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Certificates or Exchange Certificates giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding
-25-
paragraphs, such Person (the "Indemnified Person") shall promptly notify the
------------------
Person against whom such indemnity may be sought (the "Indemnifying Person") in
-------------------
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnified Person may
reasonably designate in such proceeding and shall pay the reasonable fees and
expenses actually incurred by such counsel related to such proceeding; provided,
--------
however, that the failure to so notify the Indemnifying Person shall not relieve
-------
it of any obligation or liability which it may have hereunder or otherwise
unless and only to the extent that it is directly and materially prejudiced by
such failure and the Company was not otherwise aware of such action or claim).
In any such proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person shall have failed within a reasonable period of time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person or any affiliate and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that,
unless there exists a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any one such proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out of
the same general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any appropriate local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly after receipt of the invoice therefor as they are incurred. Any such
separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Certificates and Exchange Certificates sold by all such
Participants and any such separate firm for the Company, its directors, its
officers and such control Persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its prior written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses actually incurred by counsel as contemplated by the
second sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its prior
written consent
-26-
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; provided, however, that the Indemnifying
-------- -------
Person shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons (which consent shall not be
unreasonably withheld), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement or compromise (A) includes an
unconditional written release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to (other than by
reason of exceptions provided therein), or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the
Certificates or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Participants on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of discounts
and commissions but before deducting expenses) of the Certificates received by
the Company bears to the total proceeds received by such Participant from the
sale of Registrable Certificates or Exchange Certificates, as the case may be.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
-27-
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable
Certificates or Exchange Certificates, as the case may be, exceeds the amount of
any damages that such Participant has otherwise been required to pay or has paid
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A. The Company covenants that it will file the
------------------
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time the Company is not required to file such reports, it will,
upon the request of Holders of a majority in aggregate principal amount of
Registrable Certificates, make publicly available annual reports and such
information, documents and other reports of the type specified in Sections 13
and 15(d) of the Exchange Act. The Company further covenants, for so long as
any Registrable Certificates remain outstanding, to make available to any Holder
or beneficial owner of Registrable Certificates in connection with any sale
thereof and any prospective purchaser of such Registrable Certificates from such
Holder or beneficial owner, the information required by Rule 144A(d)(4)
-28-
under the Securities Act in order to permit resales of such Registrable
Certificates pursuant to Rule 144A.
9. Underwritten Registrations. If any of the Registrable
--------------------------
Certificates covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of a
majority in aggregate principal amount of such Registrable Certificates included
in such offering and reasonably acceptable to the Company.
No Holder of Registrable Certificates may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Certificates on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, and the Company shall not after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Certificates in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements. The Company has not entered and will not
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back registration rights with respect to a Registration
Statement.
(b) Adjustments Affecting Registrable Certificates. The Company
----------------------------------------------
shall not, directly or indirectly, take any action with respect to the
Registrable Certificates as a class that would adversely affect the ability of
the Holders of Registrable Certificates to include such Registrable Certificates
in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Certificates and (B) in circumstances
that would adversely affect
-29-
the Participating Broker-Dealers, the Participating Broker-Dealers holding not
less than a majority in aggregate principal amount of the Exchange Certificates
held by all Participating Broker-Dealers; provided, however, that Section 7 and
-------- -------
this Section 10(c) may not be amended, modified or supplemented without the
prior written consent of each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Certificates or Exchange Certificates, as the case may be, disposed
of pursuant to any Registration Statement). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Certificates
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Certificates may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Certificates being
sold by such Holders pursuant to such Registration Statement.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile; provided, however, that no
notice or communication provided for or permitted hereunder to or from the
Company or to or from any Holder (if such Holder is located in the Republic of
Colombia at the time such notice or communication is given) may be made by mail:
(i) if to a Holder of the Registrable Certificates or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records
of the registrar under the Trust Agreement, with a copy in like manner to
the Initial Purchaser as follows:
BT Alex. Xxxxx Incorporated
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Finance Transaction Management
(ii) if to the Initial Purchaser, at the address specified in
Section 10(d)(i);
(iii) if to the Company, at the addresses as follows:
Transtel S.A.
-30-
Calle 19N, Xx. 0-00
Xxxxxxx 000X
X.X. Xxx 0000
Xxxx, Xxxxxxxx
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, President
(iv) if to the Pass Through Trustee, at the addresses as follows:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(v) if to the Indenture Trustee, at the addresses as follows:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Corporate Trust Department-Transtel
Xxxxxx Xxxxxx
All such notices and communications shall be deemed to have been duly
given and received: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed; one
business day after being timely delivered to a next-day air courier; and when
receipt is acknowledged by the addressee, if sent by facsimile; provided,
however, that in the case of notices and communications given to or by the
Company or to or by any Holder (if such Holder is located in the Republic of
Colombia at the time such notice or communication is given) by next-day air
courier, such notice or communication shall be deemed to have been duly given
and received upon acknowledgment of receipt by the recipient thereof.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Pass Through Trustee
at the address set forth above and in the manner specified above. All notices
and
-31-
communications given hereunder shall be in English or accompanied by an English
translation.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
-------- -------
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless such successor or assign holds
Registrable Certificates.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Third Party Beneficiaries. Holders of Registrable Certificates,
-------------------------
all Indemnified Persons entitled to indemnification under Section 7 and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(k) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, the Indenture and the Trust Agreement, is intended by the parties as
a final
-32-
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Company on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
(l) Underwriting Agreement. Notwithstanding the provisions of
----------------------
Sections 3(d), 5, 6 and 7, in the event of a Shelf Registration pursuant to
Section 3 hereof, to the extent that the Holders of Registrable Certificates
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections with
substantially similar effect, the provisions contained in such Sections
addressing such issue or issues shall be of no force or effect with respect to
the registration of securities being effected in connection with such
underwriting or similar agreement.
(m) Termination. This Agreement shall terminate and be of no further
-----------
force or effect when there shall not be any Registrable Certificates, except
that the provisions of Section 4, 6, 7 and Sections 10(h) and (j) shall survive
any such termination.
(n) Consent to Jurisdiction; Waiver of Immunity. Each of the parties
-------------------------------------------
hereto irrevocably agrees that any legal dispute, action or proceeding arising
out of or based upon this Agreement may be instituted in any New York State or
U.S. Federal court sitting in the Borough of Manhattan, New York City, New York,
U.S.A. (each a "New York Court" and collectively, the "New York Courts"),
irrevocably waives, to the extent permitted by applicable law, any objection
which it may now or hereafter have to the laying of venue to any such proceeding
and irrevocably submits to the non-exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company has appointed CT Corporation
Systems, Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
("Authorized Agent") to receive on its behalf service of copies of the summons
and complaints and any other process which may be served in any legal suit,
action or proceeding arising out of or relating to this Agreement which may be
instituted in any federal or state court sitting in The City of New York,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointments shall be irrevocable for a
period of three years from the date of this Agreement. Such service may be made
by delivering a copy of such process to the Company in care of the Authorized
Agent at the address specified above for the Authorized Agent and obtaining a
receipt therefor, and the Company
-33-
hereby irrevocably authorizes and directs such Authorized Agent to accept such
service on its behalf. The Company represents and warrants that the Authorized
Agent has agreed to act as said agent for service of process, and agrees that
service of process in such manner upon the Authorized Agent shall be deemed in
every respect effective service of process upon the Company in any such suit,
action or proceeding. The Company further agrees to take any and all actions as
may be necessary to maintain such designation and appointment of such Authorized
Agent in full force and effect. If the Authorized Agent shall cease to act as
the Company's agent in The City of New York for service of process, the Company
shall appoint without delay another such agent and notify the Escrow Agent of
such appointment.
(o) To the extent that the Company or any of its revenues, assets or
properties shall be entitled, with respect to any proceeding at any time brought
against the Company or any of its revenues, assets or properties or with respect
to any suit, action or proceeding at any time brought for the purpose of
enforcing or executing any judgment in any jurisdiction in which any specified
court or other court is located, to any immunity from suit, from the
jurisdiction of any such court, from attachment prior to judgment, from
attachment in aid of execution of judgment, from execution of a judgment or from
any other legal or judicial process or remedy, and to the extent of such
immunity, the Company irrevocably agrees not to claim and irrevocably waives
such immunity to the fullest extent permitted by the laws of such jurisdiction
(including without limitation, the Foreign Sovereign Immunities Act of 1976 of
the United States).
(p) Limitation of Liability of Wilmington Trust Company. It is
---------------------------------------------------
expressly understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as trustee of the Transtel Pass Through Trust under the
Trust Agreement dated as of October 28, 1997, among the Pass Through Trustee,
the Company and Marine Midland Bank, as registrar and paying agent thereunder,
in the exercise of the powers and authority conferred and vested in it therein,
(b) each of the representations, undertakings and agreements herein made on the
part of the Trust is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on the part of Wilmington Trust Company,
individually or personally, to perform any covenant either express or implied
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under such parties and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or any other related document.
-34-
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreements as of the date first written above.
TRANSTEL PASS THROUGH TRUST, as the Issuer
By Wilmington Trust Company,
not in its individual capacity but
solely as Pass Through Trustee
By /s/ XXXXX X. XXXXXX
----------------------------------------
Name: XXXXX X. XXXXXX
Title: Vice President
TRANSTEL S.A., as the Company
By /s/ Xxxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: President
BT ALEX. XXXXX INCORPORATED, as Initial
Purchaser
By /s/ Xxxxxx A, Xxxxxxx
---------------------------------------
Name: Xxxxxx A, Xxxxxxx
Title: Vice President
-35-
