EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of May 15, 2007, by and among SunCom Wireless Holdings, Inc., a
Delaware corporation (the "Company"), and the purchasers signatory hereto (each
a "Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to that certain Exchange Agreement,
dated as of January 31, 2007, among the Company, SunCom Wireless, Inc. (f/k/a
Triton PCS, Inc.) ("Wireless"), SunCom Wireless Investment Company LLC, a
Delaware limited liability company ("SunCom Investment"), and the Purchasers (as
amended, the "Exchange Agreement"), pursuant to which the Company is delivering
52,028,376 shares of its Class A common stock, par value $0.01 per share
("Common Stock"), to SunCom Investment, which will in turn be exchanged by
SunCom Investment for an aggregate of $341,514,000 principal amount of 9-3/8%
Senior Subordinated Notes due 2011 and $390,106,000 principal amount of 8-3/4%
Senior Subordinated Notes due 2011 of SunCom Wireless, Inc., our indirect
wholly-owned subsidiary, which are currently held by the Purchasers, upon the
terms and subject to the conditions set forth therein.
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Exchange Agreement shall have the meanings given such
terms in the Exchange Agreement. As used in this Agreement, the following terms
shall have the respective meanings set forth in this Section 1:
"Advice" shall have the meaning set forth in Section 5(a).
"Agreement" shall have the meaning set forth in the Preamble.
"Business Day" shall mean any day except Saturday, Sunday or any
other day on which commercial banks in the Commonwealth of Pennsylvania and/or
the State of New York are authorized by law or other governmental action to
close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the Preamble.
"Company" shall have the meaning set forth in the Preamble.
"Disclosure Package" means, with respect to any offering of
securities, (i) the preliminary prospectus, (ii) each Free Writing Prospectus
and (iii) all other information, in each case, that is deemed under Rule 159
promulgated under the Securities Act to have been conveyed to purchasers of
securities at the time of sale of such securities (including a contract of
sale).
"Effective Date" means the date that the Registration Statement
filed pursuant to Section 2(a) or 2(b) is first declared effective by the
Commission.
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"Effectiveness Date" means (a) with respect to the initial
Registration Statement required to be filed pursuant to Section 2(a), the
earlier of: (a)(i) the 120th day following the Closing Date and (ii) the fifth
Trading Day following the date on which the Company is notified by the
Commission that the initial Registration Statement will not be reviewed or is no
longer subject to further review and comments, and (b) with respect to any
additional Registration Statements that may be required pursuant to Section
2(b), the 120th day following the date on which the Company first knows, or
reasonably should have known, that such additional Registration Statement is
required under such Section; provided, however, that in the event the Company
shall have entered into a definitive agreement with respect to a Sale
Transaction or such Sale Transaction has become "probable" (within the meaning
Regulation S-X) prior to the effectiveness of an initial Registration Statement
pursuant to Section 2(a) and before the Effectiveness Date, the Effectiveness
Date shall be extended by an additional 60 days.
"Effectiveness Period" shall have the meaning set forth in Section
2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agreement" shall have the meaning set forth in the
Preamble.
"Filing Date" means (a) with respect to the initial Registration
Statement required to be filed pursuant to Section 2(a), the 20th day following
the Closing Date, and (b) with respect to any additional Registration Statements
that may be required pursuant to Section 2(b), the 30th day following the date
on which the Company first knows, or reasonably should have known, that such
additional Registration Statement is required under such Section; provided,
however, that in the event the Company shall have entered into a definitive
agreement with respect to a Sale Transaction or such Sale Transaction has become
"probable" (within the meaning Regulation S-X) prior to the filing of an initial
Registration Statement pursuant to Section 2(a) and before the Filing Date, the
Filing Date shall be extended by an additional 60 days.
"Free Writing Prospectus" means any "free writing prospectus" as
defined in Rule 405 promulgated under the Securities Act.
"Indemnified Party" shall have the meaning set forth in Section
5(c).
"Indemnifying Party" shall have the meaning set forth in Section
5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means (i) the prospectus included in a Registration
Statement (including, without limitation, 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) or (ii) a Free Writing Prospectus, as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
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post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"Purchaser" and "Purchasers" shall have the meaning set forth in the
Preamble.
"Registrable Securities" means as to each Purchaser: (i) the Shares
held by such Purchaser and (ii) any securities issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event with
respect to any of the securities referenced in (i) above.
"Registration Statement" means the initial registration statement
required to be filed in accordance with Section 2(a) and any additional
registration statement(s) required to be filed under Section 2(b), including (in
each case) the Prospectus, amendments and supplements to such registration
statements or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statements.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder Questionnaire" shall have the meaning set forth in
Section 2(c).
"Shares" means the shares of Common Stock beneficially owned by the
Purchasers, including shares of Common Stock issued or issuable to the
Purchasers pursuant to the Exchange Agreement.
"SunCom Investment" shall have the meaning set forth in the
Preamble.
"Suspension Period" shall have the meaning set forth in Section
6(e)(ii).
"Trading Day" means a day on which the principal national securities
exchange or automated quotation system in the United States on which the
Company's Common Stock is listed or quoted or admitted to trading is open for
the transaction of business or, if the Company's Common Stock is not listed or
quoted or admitted to trading on any national securities exchange or automated
quotation system in the United States, any Business Day.
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"Trading Market" means whichever of the New York Stock Exchange, the
American Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global
Market or The NASDAQ Capital Market, on which the Common Stock is listed or
quoted for trading on the date in question.
2. Registration.
(a) On or prior to the Filing Date, the Company shall prepare and
file with the Commission a Registration Statement covering the resale of all
Registrable Securities. The Registration Statement shall be on Form S-3 (except
if the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on another
appropriate form for such purpose). The Company shall use its commercially
reasonable efforts to cause the Registration Statement to be declared effective
under the Securities Act no later than the Effectiveness Date, and shall use its
commercially reasonable efforts to keep the Registration Statement continuously
effective under the Securities Act until the date which is the earlier of (i)
three (3) years after the Effective Date, (ii) such time as all of the
Registrable Securities have been publicly sold by the Purchasers, or (iii) such
time as all of the Registrable Securities may be sold pursuant to Rule 144(k)
(the "Effectiveness Period"). The Company will use its commercially reasonable
efforts, consistent with the terms of this Agreement, to remain eligible to use
Form S-3 registration or a similar short-form registration.
(b) If for any reason the Commission does not permit all of the
Registrable Securities to be included in the Registration Statement filed
pursuant to Section 2(a), or for any other reason any Registrable Securities are
not included in a Registration Statement filed under this Agreement, or if the
Registration Statement ceases to be effective before the expiration of the
Effectiveness Period, then the Company shall prepare and file as soon as
possible after the date on which the Commission shall indicate as being the
first date or time that such filing may be made, but in any event by its Filing
Date, an additional Registration Statement covering the resale of all
Registrable Securities not already covered by an existing and effective
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415, on Form S-3 (except if the Company is not then eligible to register
for resale the Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form for such purpose). The Company
shall use its commercially reasonable efforts to cause each such Registration
Statement to be declared effective under the Securities Act as soon as possible
but, in any event, no later than its Effectiveness Date, and shall use its
commercially reasonable efforts to keep such Registration Statement continuously
effective under the Securities Act during its entire Effectiveness Period.
(c) Each Purchaser agrees to furnish to the Company a completed
Questionnaire in the form attached to this Agreement as Annex A (a "Selling
Holder Questionnaire"). The Company shall not be required to include the
Registrable Securities of a Purchaser in a Registration Statement who fails to
furnish to the Company a fully completed Selling Holder Questionnaire at least
six Trading Days prior to the Filing Date (subject to the requirements set forth
in Section 3(a)).
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3. Registration Procedures
In connection with the Company's registration obligations hereunder,
the Company shall:
(a) Not less than five Trading Days prior to the filing of a
Registration Statement or any related Prospectus or any amendment or supplement
thereto furnish to the Purchasers and Purchasers' counsels copies of such
documents as proposed to be filed, which documents will be subject to the review
of the Purchasers, except for any amendment or supplement or document (a copy of
which has been previously furnished to the Purchasers) which counsel to the
Company shall advise the Company is required to be filed sooner in order to
comply with applicable law, rules and regulations.
(b) (i) Subject to Section 6(e), prepare and file with the
Commission such amendments, including post-effective amendments, to each
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and prepare and
file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to
Rule 424; (iii) respond reasonably promptly to any comments received from the
Commission with respect to each Registration Statement or any amendment thereto
and, as promptly as reasonably possible provide the Purchasers true and complete
copies of all correspondence from and to the Commission relating to such
Registration Statement that would not result in the disclosure to the Purchasers
of material and non-public information concerning the Company; and (iv) comply
in all material respects with the provisions of the Securities Act and the
Exchange Act with respect to the Registration Statements and the disposition of
all Registrable Securities covered by each Registration Statement. Additionally,
upon the written request of the holders of at least 15% of the Registrable
Securities held by the Purchasers, the Company shall file such amendments,
including post-effective amendments, to each Registration Statement, or file
such Prospecuts supplements as are required to permit an underwritten offering
of the Registrable Securities. Such underwritten offering shall be on reasonable
and customary terms to be agreed to by the Purchasers and the Company; provided,
that the Purchasers shall have the right to select the underwriters for such
offering, subject to the agreement of the Company, not to be unreasonably
withheld, delayed or conditioned.
(c) Notify the Purchasers as promptly as reasonably possible (and,
in the case of (i)(A) below, not less than three Trading Days prior to such
filing): (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review" of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to the Purchasers that would not
result in the disclosure to the Purchasers of material and non-public
information concerning the Company, unless the Purchasers are willing to enter
into a confidentiality agreement covering such non-public information); and (C)
with respect to each Registration Statement or any post-effective amendment,
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when the same has become effective; (ii) of any request by the Commission or any
other Federal or state governmental authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a
Registration Statement covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; (v) of the occurrence of any event or passage of time that makes the
financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or the Prospectus, as the case may be, 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 existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement thereto,
untrue, or that requires the making of additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading.
(d) Use its commercially reasonable efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of, (i) any order suspending the
effectiveness of a Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction.
(e) Upon written request, furnish to each of the Purchasers,
without charge, at least one conformed copy of each Registration Statement and
each amendment thereto and all exhibits promptly after the filing of such
documents with the Commission.
(f) Promptly deliver to each of the Purchasers, without charge, as
many copies of each Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as the Purchasers may
reasonably request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by the Purchasers in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities, use
its commercially reasonable efforts to register or qualify or cooperate with the
Purchasers in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of all jurisdictions within
the United States reasonably requested by a Purchaser proposing to sell
securities in such jurisdiction, to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and to do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the Registration
Statements; provided, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or subject the Company to any material tax in any such jurisdiction where it is
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not then so subject or (ii) file a general consent to service of process in any
such jurisdiction, except in such jurisdictions where the Company is already
subject to service of process.
(h) Cooperate with the Purchasers to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to the Registration Statements, which
certificates shall be free, to the extent permitted by the Exchange Agreement,
of all restrictive legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as the Purchasers may request.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the affected Registration Statements or
a supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, no Registration Statement nor any Prospectus will
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.
(j) If requested by the Purchasers, the Company shall cause the
appropriate officers of the Company to (i) prepare and make presentations at any
"road shows" and before analysts and rating agencies, as the case may be, (ii)
take other reasonable actions to obtain ratings for any Registrable Securities
and (iii) otherwise use their reasonable efforts to cooperate as requested by
the underwriters in the offering, marketing or selling of the Registrable
Securities.
(k) The Company shall cause to be furnished to each Purchaser and
to each such underwriter, if any, a signed counterpart, addressed to such
Purchaser or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the kind customarily covered by opinions or comfort letters, as the case may
be, as a majority of such Purchasers or the managing underwriter therefor
reasonably requests.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the foregoing
sentence (the "Registration Expenses") shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made with any Trading Market
on which the Common Stock is then listed for trading, and (B) in compliance with
applicable state securities or Blue Sky laws, including reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
securities registered), (ii) fees and disbursements of counsel for the Company,
(iii) fees and expenses of all other Persons retained by the Company in
connection with the consummation of the transactions contemplated by this
Agreement, including and fees and expenses for independent certified public
accountants retained by the Company (including the expenses relating to any
comfort letters or costs associated with the delivery by independent certified
public accountants of any comfort letters requested pursuant to Section 3(k)),
(iv) expenses in connection with the preparation, printing, mailing and delivery
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of any registration statements, prospectuses and other documents in connection
therewith and any amendments or supplements thereto, (v) security engraving and
printing expenses, (vi) fees and expenses of any special experts retained by the
Company in connection with such registration, (vii) reasonable fees and expenses
of one counsel for all of the Purchasers participating in the offering selected
by the Purchasers, (viii) fees and expenses in connection with any review by the
NASD of any underwriting arrangements or other terms of the offering, and all
reasonable fees and expenses of any "qualified independent underwriter,"
including the fees and expenses of any counsel thereto, (ix) reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any underwriting fees, discounts and commissions
attributable to the sale of Registrable Securities, (x) costs of printing and
producing any agreements among underwriters, underwriting agreements, any "blue
sky" or legal investment memoranda and any selling agreements and other
documents in connection with the offering, sale or delivery of the Registrable
Securities, (xi) transfer agents' and registrars' fees and expenses and the fees
and expenses of any other agent or trustee appointed in connection with such
offering, (xii) reasonable expenses relating to any analyst or investor
presentations or any "road shows" undertaken in connection with the
registration, marketing or selling of the Registrable Securities, and (xiii)
fees and expenses payable in connection with any ratings of the Registrable
Securities, including expenses relating to any presentations to rating agencies.
In addition, the Company shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. Notwithstanding anything to the contrary contained herein, in the
event of an underwritten offering of the Registrable Securities, the Purchasers
shall be responsible for any underwriting discounts or commissions in connection
with such offering.
5. Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
the Purchasers, the officers, directors, agents, investment advisors, partners,
members and employees of each of them, each Person who controls any such
Purchaser (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, agents and employees of each
such controlling Person, to the fullest extent permitted by applicable law, from
and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and reasonable attorneys'
fees) and expenses (collectively, "Losses"), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus or any form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus or
otherwise included in the Disclosure Package, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (1) such untrue statements or omissions are based
solely upon information regarding such Purchaser furnished in writing to the
Company by such Purchaser expressly for use therein, or to the extent that such
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information relates to such Purchaser or such Purchaser's proposed method of
distribution of Registrable Securities, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (2) in the case of an
occurrence of an event of the type specified in Section 3(c)(ii)-(vi), the use
by such Purchaser of an outdated or defective Prospectus after the Company has
notified such Purchaser in writing that the Prospectus is outdated or defective
and prior to the receipt by such Purchaser of advice in writing (the "Advice")
from the Company that the use of the applicable Prospectus may be resumed or an
amended or supplemented Prospectus, but only if and to the extent that following
the receipt of the Advice or the amended or supplemented Prospectus the
misstatement or omission giving rise to such Loss would have been corrected. The
Company shall notify the Purchasers promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement. The Company also agrees to
indemnify any underwriters of the Registrable Securities, their directors,
officers, employees, stockholders, general partners, limited partners, members,
advisory directors, managing directors and Affiliates (and directors, officers,
employees, stockholders, general partners, limited partners, members, advisory
directors, managing directors and controlling persons thereof) on substantially
the same basis as that of the indemnification of the Purchasers provided in this
Section 5(a) or otherwise on commercially reasonable terms negotiated on an
arm's-length basis with such underwriters
(b) Indemnification by the Purchasers. Each Purchaser shall
indemnify and hold harmless the Company, its directors, officers, agents and
employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, to the
extent arising out of or to the extent based upon: (x) the Purchaser's failure
to comply with the prospectus delivery requirements of the Securities Act or (y)
any untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto or otherwise included in the Disclosure Package, or to the extent
arising out of or to the extent based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading to the extent,
but only to the extent that, (1) such untrue statements or omissions are based
solely upon information regarding such Purchaser furnished in writing to the
Company by such Purchaser expressly for use therein, or to the extent that such
information relates to such Purchaser or such Purchaser's proposed method of
distribution of Registrable Securities (it being understood that such Purchaser
has approved Annex B hereto for this purpose), or (2) in the case of an
occurrence of an event of the type specified in Section 3(c)(ii)-(vi), the use
by such Purchaser of an outdated or defective Prospectus after the Company has
notified such Purchaser in writing that the Prospectus is outdated or defective
and prior to the receipt by such Purchaser of the Advice or an amended or
supplemented Prospectus, but only if and to the extent that following the
receipt of the Advice or the amended or supplemented Prospectus the misstatement
or omission giving rise to such Loss would have been corrected. In no event
shall the liability of any selling Purchaser hereunder be greater in amount than
the dollar amount of the net proceeds received by such Purchaser upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
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(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing, and,
if the Indemnifying Party so elects within a reasonable time after receipt of
such notice, the Indemnifying Party may assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that
such failure shall have materially and adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised in writing by counsel that a conflict of interest is
likely to exist if the same counsel were to represent such Indemnified Party and
the Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within five
Trading Days of written notice thereof to the Indemnifying Party (regardless of
whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
10
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Purchaser shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the proceeds actually received by such Purchaser from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a
Purchaser of any of their obligations under this Agreement, each Purchaser or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
may seek (upon proper proof) specific performance of its rights under this
Agreement.
(b) No Piggyback on Registrations. Neither the Company nor any of
its security holders (other than the Purchasers in such capacity pursuant
hereto) may include securities of the Company in a Registration Statement other
than the Registrable Securities, and the Company shall not during the
Effectiveness Period enter into any agreement providing any such right to any of
its security holders.
(c) No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Purchasers herein. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Purchasers in this Agreement or grant any additional registration
rights to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement.
11
(d) Compliance. Each Purchaser covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(e) Discontinued Disposition.
(i) Each Purchaser agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Section
3(c)(ii)-(vi), such Purchaser will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until such
Purchaser's receipt of the copies of the supplemented or amended
Prospectus and/or amended Registration Statement, or until such
Purchaser's receipt of the Advice, and, in either case, has received
copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.
(ii) Notwithstanding the foregoing, the Company may suspend
the effectiveness of the Registration Statement by written notice to the
Purchasers for a period not to exceed an aggregate of 30 days in any
90-day period (each such period a "Suspension Period") if:
(1) an event occurs and is continuing as a result of
which the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
would, in the Company's reasonable judgment, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(2) the Company determines in good faith, after
consultation with external legal counsel, that the disclosure of such
event at such time would be materially detrimental to the Company and its
subsidiaries;
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Board of Directors of the Company determines in
good faith would be reasonably likely to impede the Company's ability to
consummate such transaction, the Company may extend a Suspension Period
from 30 days to 45 days; provided, however, that Suspension Periods shall
not (i) exceed an aggregate of 90 days in any 360-day period and (ii)
occur more than three separate times in any 360-day period. The Company
shall not be required to specify in the written notice to the Purchasers
the nature of the event giving rise to the Suspension Period.
(iii) During the occurrence of any Suspension Period, the
Company shall use its commercially reasonable efforts to promptly amend or
supplement the Registration Statement on a post-effective basis or to take such
action as is necessary to permit resumed use of the Registration Statement as
soon as possible after the termination of the Suspension Period.
12
(iv) Notwithstanding any provision herein to the contrary, if
the Company shall give notice of a Suspension Period pursuant to Section
6(e)(ii) with respect to any Registration Statement, the Company agrees that it
shall extend the Effectiveness Period by the number of days during the period
from the date of the giving of notice of a Suspension Period to and including
the date when the Company provides written notice that the Suspension Period has
ended and copies of the supplemented or amended Prospectus necessary to resume
sales, with respect to each Suspension Period.
(f) Piggy-Back Registrations. (i) If at any time during the
Effectiveness Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine to prepare and
file with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under
the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Purchaser written notice of
such determination and, if within five Trading Days after receipt of such
notice, such Purchaser shall so request in writing, the Company shall include in
such registration statement all or any part of such Registrable Securities such
holder requests to be registered (the "Piggyback Registration"). The Company
shall be liable for and pay all Registration Expenses in connection with each
Piggyback Registration, regardless of whether such registration is effected.
(ii) In a Piggyback Registration, if the managing underwriter
advises the Company that, in its view, the number of Registrable Securities that
the Company and all Purchasers propose to include in such registration exceeds
the largest number of Registrable Securities that can be sold without having an
adverse effect on such offering, including the price at which such Registrable
Securities can be sold (the "Piggyback Maximum Offering Size"), the Company
shall include in such registration, in the following priority, up to the
Piggyback Maximum Offering Size:
1. first, such number of Registrable Securities proposed to be
offered for the account of the Company, if any, as would not
cause the offering to exceed the Piggyback Maximum Offering
Size,
2. second, all Registrable Securities requested to be included
in such offering by any Purchasers pursuant to this Section
6(f) (the Registrable Securities allocated, if necessary for
the offering not to exceed the Piggyback Maximum Offering
Size, pro rata among the Purchasers on the basis of the
relative number of Registrable Securities so requested to be
included in such offering by each Purchaser).
3. third, any securities proposed to be registered for the
account of any other Persons, with such priorities among them
as the Company shall determine.
(g) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this Section 6(g), may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
13
may not be given, unless the same shall be in writing and signed by the Company
and Purchasers holding no less than a majority of the then outstanding
Registrable Securities. 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 certain Purchasers and that does not directly or
indirectly affect the rights of other Purchasers may be given by Purchasers
holding no less than a majority of the then outstanding Registrable Securities
to which such waiver or consent relates. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
(h) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 5:30 p.m. (New
York City time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any date and earlier
than 11:59 p.m. (New York City time) on a Trading Day, (iii) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Company: SunCom Wireless Holdings, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000 (phone)
(000) 000-0000(facsimile)
With a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: W. Xxxxxx Xxx
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
14
If to a Purchaser: To the address set forth under
such Purchaser's name on the signature pages
hereto.
With a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
(i) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Purchaser.
(j) Execution and Counterparts. This Agreement may be executed in
any number of 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. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(k) Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. By its execution and delivery of this Agreement,
each of the parties hereto hereby irrevocably and unconditionally agrees for
itself that any legal action, suit or proceeding against it with respect to any
matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, may be brought in either a state or federal court of competent
jurisdiction in the State of New York. By execution and delivery of this
Agreement, each of the parties hereto hereby irrevocably accepts and submits
itself to the nonexclusive jurisdiction of each such court, generally and
unconditionally, with respect to any such action, suit or proceeding. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(l) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) 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
15
hereto shall use their reasonable 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.
(n) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(o) Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under this Agreement are several and not joint
with the obligations of each other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under this Agreement. Nothing contained herein or in any other
document entered into in connection herewith, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by
this Agreement or any other document entered into in connection herewith. Each
Purchaser acknowledges that no other Purchaser will be acting as agent of such
Purchaser in enforcing its rights under this Agreement. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
Proceeding for such purpose. The Company acknowledges that each of the
Purchasers has been provided with the same Registration Rights Agreement for the
purpose of closing a transaction with multiple Purchasers and not because it was
required or requested to do so by any Purchaser.
(p) No Recourse. This Agreement may only be enforced against, and
any claims or causes of action that may be based upon, arise out of or relate to
this Agreement, or the negotiation, execution or performance of this Agreement
may only be made against the entities that are expressly identified as parties
hereto and no past, present or future affiliate, director, officer, employee,
incorporator, member, manager, partner, stockholder, agent, attorney or
representative of any party hereto shall have any liability for any obligations
or liabilities of the parties to this Agreement or for any claim based on, in
respect of, or by reason of, the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
16
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
SUNCOM WIRELESS HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE OF PURCHASERS TO FOLLOW]
17
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
PARDUS EUROPEAN SPECIAL OPPORTUNITIES MASTER FUND L.P.
By: Pardus Capital Management LP, its Investment
Manager
By: Pardus Capital Management LLC, its general
partner
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Sole Member
Address for Notice:
x/x Xxxxxx Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx X
Xxx Xxxx, Xxx Xxxx 00000
18
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for and on
behalf of American High-Income Trust
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
Address for Notice:
000 Xxxxx Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxxx
19
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for and on
behalf of The Bond Fund of America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
Address for Notice:
000 Xxxxx Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxxx
20
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for and on
behalf of The Income Fund of America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
Address for Notice:
000 Xxxxx Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxxx
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
LISPENARD STREET CREDIT (MASTER), LTD
By: XxXxxx Xxxxx Capital LLC, its investment manager
By: /s/ Xxx Xxxxxxx
--------------------------------------------
Name: Xxx Xxxxxxx
Title: Partner and Chief Operating Officer
Address for Notice:
c/o XxXxxx Xxxxx Capital LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
21
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
POND VIEW CREDIT (MASTER), L.P.
By: XxXxxx Xxxxx Capital LLC, its investment manager
By: /s/ Xxx Xxxxxxx
--------------------------------------------
Name: Xxx Xxxxxxx
Title: Partner and Chief Operating Officer
Address for Notice:
c/o XxXxxx Xxxxx Capital LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
22
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CREDIT OPPORTUNITIES CDO, L.P.
By: Highland Credit Opportunities CDO GP, L.P., its
general partner
By: Highland Credit Opportunities CDO GP, LLC, its
general partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand Advisors,
Inc., General Partner of Highland Capital
Management, L.P.
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
23
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CREDIT OPPORTUNITIES CDO, LTD.
By: Highland Capital Management, L.P., As
Collateral Manager
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand Advisors,
Inc., General Partner of Highland Capital
Management, L.P.
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
24
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND SPECIAL OPPORTUNITIES HOLDING COMPANY
By: /s/ J. Xxxxx Xxxxxxxx
--------------------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Officer
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
25
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P.
By: Highland Crusader Fund GP, L.P., its general
partner
By: Highland Crusader Fund GP, LLC., its general
partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand Advisors,
Inc., General Partner of Highland Capital
Management, L.P.
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
26
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CREDIT STRATEGIES MASTER FUND, L.P.
By: Highland General Partner, L.P., its general
partner
By: Highland GP Holdings LLC, its general partner
By: Highland Capital Management, LP, its sole member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand Advisors,
Inc., General Partner of Highland Capital
Management, L.P.
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
27
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P.
By: Highland CDO Opportunity Fund GP, L.P., its
general partner
By: Highland CDO Opportunity Fund GP, LLC., its
general partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand Advisors,
Inc., General Partner of Highland Capital
Management, L.P.
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
28
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CAPITAL MANAGEMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Officer
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
29
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
HIGHLAND CREDIT STRATEGIES FUND
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
30
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
RESTORATION OPPORTUNITIES FUND
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Address for Notice:
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
31
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
ORIX FINANCE CORP.
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
Address for Notice:
0000 Xxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Operations Manager
32
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
XXXXXXX, SACHS & CO.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner - Managing Director
Address for Notice:
0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
33
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
Address for Notice:
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
34
