Exhibit 4.17
Crown Castle International Corp.
9 3/8% Senior Notes due 2011
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Exchange and Registration Rights Agreement
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May 16, 2001
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇▇▇▇▇, Sachs & Co.,
Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
BNY Capital Markets, Inc.,
Scotia Capital (USA) Inc.,
The Royal Bank of Scotland plc,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in the Purchase Agreement (as defined herein) its
9 3/8% Senior Notes due 2011. As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Company agrees with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
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"Business Day" shall mean any day except Saturday, Sunday or
other day in the City of New York on which banks are authorized or ordered to
close.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person
owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of May 16,
2001, between the Company and The Bank of New York, as Trustee, as the
same shall be amended from time to time.
"Majority Holders" means the holders of a majority of the
aggregate principal amount at maturity of the Registrable Securities
satisfying the terms and conditions for
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registration under the Exchange Registration Statement or the Shelf
Registration Statement.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "person" shall mean a corporation (profit or
nonprofit), association, limited liability company, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of May 10, 2001, between the Purchasers and the Company relating to
the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof (provided that any
Exchange Security that, pursuant to the last two sentences of Section
2(a), is included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 180-day period referred to in
Section 2(a)); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under
the Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder thereof
in accordance with the Shelf Registration Statement; (iii) such
Security is distributed to the public pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Company or pursuant to the Indenture; (iv) such Security
is eligible to be sold pursuant to Rule 144(k); or (v) such Security
shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of
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distributing Exchange Securities and (iv) a holder that is a broker-
dealer, but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 158," "Rule 405" and "Rule 415" shall mean,
in each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time.
"Securities" shall mean the 9% Senior Notes due 2011 of
the Company to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2 Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company
agrees to file under the Securities Act as soon as practicable, but in
no event later than 60 days following the Closing Date, a registration
statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement", and such offer, the
"Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are
entitled to the benefits of trust indenture which are substantially
identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional
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interest contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The Company agrees to use
all commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act at the earliest
possible time, but in no event later than 180 days following the
Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use its best efforts to commence and
complete the Exchange Offer on the earliest practicable date, but no
later than 30 Business Days after such registration statement has
become effective, hold the Exchange Offer open for at least 20 Business
Days and exchange Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to
have been "completed" only if the debt securities received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without
material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier
to occur of (i) the Company having exchanged the Exchange Securities
for all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have
been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 20 days
following the commencement of the Exchange Offer. The Company agrees
(x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is
completed existing Commission interpretations are changed such that the
debt securities received by holders other than Restricted Holders in
the Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction
under the Securities Act, (ii) the Exchange Offer has not been
completed within 225 days following the Closing Date or (iii) the
Exchange Offer is not available to any holder of the Securities, the
Company shall, in lieu of (or, in the case of clause (iii), in addition
to) conducting the Exchange Offer contemplated by Section 2(a), file
under the Securities Act on or prior to 45 days after such filing
obligation arises, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing,
the "Shelf Registration" and
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such registration statement, the "Shelf Registration Statement"). The
Company agrees to use all commercially reasonable efforts (x) to cause
the Shelf Registration Statement to become or be declared effective on
or prior to 90 days following the filing of such Shelf Registration
Statement and to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary
of the Effective Time or such time as there are no longer any
Registrable Securities outstanding, provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof
for resales of Registrable Securities unless such holder is an Electing
Holder, and (y) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement, provided, however,
that nothing in this clause (y) shall relieve any such holder of the
obligation to return a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations
or instructions applicable to the registration form used by the Company
for such Shelf Registration Statement or by the Securities Act or rules
and regulations thereunder for shelf registration and the Company
agrees to furnish to each Electing Holder copies of any such supplement
or amendment prior to its being used or promptly following its filing
with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the
date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 30 Business Days
following the initial effective date of the Exchange Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Exchange Registration Statement or
Shelf Registration Statement required by Section 2(a) or 2(b) hereof is
filed and declared effective but shall thereafter either be withdrawn
by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and
each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated
damages for such Registration Default, subject to the provisions of
Section 9(b), special interest ("Special Interest"), in addition to the
Base Interest, shall accrue in an amount equal to $0.05 per week per
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$1,000 in principal amount at maturity of Registrable Securities for
each week or portion thereof that the Registration Default Period
continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated
damages shall increase by an additional $0.05 per week per $1,000 in
principal amount at maturity of Registrable Securities with respect to
each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of liquidated damages for all
Registration Defaults of $.50 per week per $1,000 in principal amount
at maturity of Registrable Securities.
(d) The Company shall take all actions necessary or advisable to
be taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time.
3 Registration Procedures.
If the Company files a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act of
1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company's obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission, in no event
later than 60 days following the Closing Date, an Exchange
Registration Statement on any form which may be utilized by the
Company and which shall permit the Exchange Offer and resales of
Exchange Securities by broker-dealers during the Resale Period to
be effected as contemplated by Section 2(a), and use all
commercially reasonable efforts to cause such Exchange
Registration Statement to become effective in no event later than
180 days following the Closing Date;
(ii) promptly file with the Commission such amendments and
supplements to such Exchange Registration Statement and the
prospectus
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included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, as
such broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has requested
or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A)
when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or
any request by the Commission for amendments or supplements to
such Exchange Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(F) above, to notify any broker-
dealers holding Exchange Securities, without delay prepare and
furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities during the
Resale Period,
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such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall 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 not
misleading in light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of
the Resale Period and (C) take any and all other actions as may
be reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its best efforts to obtain the consent or
approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange Securities,
not later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of
the Commission and shall make generally available to its
securityholders within eighteen months after the effective date
of such Exchange Registration Statement, an earning statement
(which need not be audited) of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to
the Shelf Registration, if applicable, the Company shall:
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(i) prepare and file with the Commission as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which
may be utilized by the Company and which shall register all of
the Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its best efforts to cause such Shelf
Registration Statement to become effective within the time
periods specified in Section 2(b);
(ii) not less than 25 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no
holder shall be entitled to use the prospectus forming a part
thereof for resales of Registrable Securities at any time, unless
such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set
forth therein; provided, however, holders of Registrable
Securities shall have at least 20 calendar days from the date on
which the Notice and Questionnaire is first mailed to such
holders to return a fully completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the
Company shall not be required to take any action to name such
holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming
a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) promptly prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement
and the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Shelf Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment promptly following its
filing with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with
the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;
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(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Agreement, shall
include a person deemed to be an underwriter within the meaning
of Section 2(a)(11) of the Securities Act), if any, thereof, (C)
any sales or placement agent therefor, (D) counsel for any such
underwriter or agent and (E) not more than one counsel for all
the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment
or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified
in Section 2(b), make available at reasonable times at the
Company's principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to
the Shelf Registration such financial and other information and
books and records of the Company, and cause the officers and
employees, counsel and independent certified public accountants
of the Company to respond to such inquiries as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person
any information or records reasonably designated by the Company
as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such registration statement of otherwise) through a
third party without an accompanying obligation of
confidentiality, or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any
court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is
required to be set forth in such Shelf Registration Statement or
the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and
the rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances then existing;
(viii) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof
(which notification may be made through any managing underwriter
that is a representative of such underwriter for such purpose)
and confirm such advice in writing, (A) when such
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Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the
Commissioner and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xvii) or
Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any
time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or post-
effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including information
with respect to the principal amount of Registrable Securities
being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing Holder,
agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms
of the offering of the Registrable Securities to be sold by such
Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
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(xi) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment
and supplement thereto (in each case including all exhibits
thereto (in the case of an Electing Holder of Registrable
Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such
Electing Holder, agent or underwriter, as the case may be) and of
the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to
permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications
in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is
required to remain effective under Section 2(b) above and for so
long as may be necessary to enable any such Electing Holder,
agent or underwriter to complete its distribution of Securities
pursuant to such Shelf Registration Statement and (C) take any
and all other actions as may be reasonably necessary or advisable
to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however,
that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any
13
changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(xiii) use its best efforts to obtain the consent or
approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the
Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xiv) Unless any Registrable Securities shall be in book-
entry only form, cooperate with the Electing Holders and the
managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith
as the Majority Holders shall request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and whether or not
any portion of the offering contemplated by the Shelf
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters,
if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant
to any appropriate agreement or to a registration statement filed
on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form and covering
such matters, of the type customarily covered by such an opinion,
as the Majority Holders may reasonably request, addressed to such
Electing Holder or Electing Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof and
dated the effective date of such Shelf Registration Statement
(and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) it being agreed that the matters to
be covered by such opinion shall
14
include in form, substance and scope those matters set forth in
Section 7(b) of the Purchase Agreement; (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of
such Shelf Registration Statement and (ii) the effective date of
any prospectus supplement to the prospectus included in such
Shelf Registration Statement or post-effective amendment to such
Shelf Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus
(and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to
the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type;
(D) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by the Majority
Holders to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained
in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E)
undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6
hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Agreement pursuant to Section 9(h) hereof and
of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Conduct Rules") of
the National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Conduct Rules, including
by (A) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Conduct
Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities,
to exercise usual standards of due diligence in respect
15
thereto and, if any portion of the offering contemplated by such
Shelf Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield
of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof, and
(C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Conduct Rules;
(xx) comply with all applicable rules and regulations of
the Commission, and shall make generally available to its
securityholders within eighteen months after the effective date
of such Shelf Registration Statement, an earning statement (which
need not be audited) of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder); and
(xxi) if the Securities have been rated prior to the
initial sale of the Securities, use its best efforts to confirm
that such ratings will apply to the Registrable Securities
covered by a Shelf Registration Statement, or (B) if the
Securities were not previously rated, use commercially reasonable
efforts to cause the Registrable Securities covered by the Shelf
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Majority Holders.
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare
and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall 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 not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice
from the Company pursuant to Section 3(d)(viii)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
applicable to such Registrable Securities until such Electing Holder
shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such Electing Holder shall deliver
to the Company (at the Company's expense) all copies, then in such
Electing Holder's possession of the prospectus covering such
Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its
Notice and Questionnaire, the Company
16
may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such
Electing Holder agrees to notify the Company as promptly as practicable
of any inaccuracy or change in information previously furnished by such
Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional
information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
(g) Until the expiration of two years after the Closing Date,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
4 Registration Expenses.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or compliance
with this Agreement, including (a) all Commission and any NASD registration,
filing and review fees and expenses including fees and disbursements of counsel
for the Majority Holders in connection with such registration, filing and
review, (b) all fees and expenses in connection with the qualification of the
Securities for offering and sale under the State securities and blue sky laws
referred to in Section 3(d)(xii) hereof and determination of their eligibility
for investment under the laws of such jurisdictions as the Majority Holders may
designate, including any fees and disbursements of the above designated counsel
referred to in subclause (a) above in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred to in clause (c) above, (e) fees
17
and expenses of the Trustee under the Indenture, any agent of the Trustee and
the counsel for the Trustee and of any collateral agent or custodian, (f)
internal expenses (including all salaries and expenses of the Company's officers
and employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any "qualified independent underwriter" engaged
pursuant to Section 3(d)(xix) hereof, (i) fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Majority Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5 Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and 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 not misleading; and at all
times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section
18
3(c) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and 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 not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any Indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound
or to which any of the property or assets of the Company or any
subsidiary of the Company is subject, nor will such action result in
any violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Securities Act of the Securities, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the offering
and distribution of the Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
19
6 Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless each of the holders of Registrable Securities
included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration
Statement and each person who participates as a placement or sales
agent or as an underwriter in any offering or sale of such Registrable
Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration
Statement or Shelf Registration Statement, as the case may be, under
which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein
or furnished by the Company to any such holder, Electing Holder or
underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder,
such Electing Holder, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by
such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Electing Holders of such Registrable Securities
included in any registration statement filed pursuant to Section 2(b)
and 2(a) hereof and each person who participates as an underwriter in
any offering of such Registrable Securities, severally and not
jointly, agrees to (i) indemnify and hold harmless the Company and all
other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by
20
such Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Electing Holder, or underwriter
expressly for use therein, and (ii) reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that no such Electing Holder or
underwriter shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount
of the proceeds to be received by such Electing Holder from the sale of
such Electing Holder's Registrable Securities pursuant to such
registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under Section 6 (a) or (b) hereof of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the failure to so notify the
indemnifying party will not relieve the indemnifying party from
liability under Section 6 (a) or (b) hereof unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable
to such indemnified party for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) hereof are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable to such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
resulted in such losses,
21
claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
party or by such indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this Section 6(d)
were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section
6(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such holder from the sale of
any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay 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.
The holders' and any underwriters' obligations in this Section
6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within
the meaning of the Securities Act; and the obligations of the holders
and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the
Securities Act.
22
7 Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by the Majority Holders of the Registrable
Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such
holder may participate in any underwritten offering hereunder unless
such holder (i) agrees to sell such holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8 Rule 144.
The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.
9 Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities or
any other securities which would be inconsistent with the terms
contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to
perform any of its obligations hereunder and that the Purchasers and
the holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel
specific performance of the
23
obligations of the Company under this Agreement in accordance with the
terms and conditions of this Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed
to have been duly given when received as follows: if to (i) the
Company, to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(ii) a holder, to it at the address of such holder set forth in the
security register or other records of the Company; or (iii) to such
other address as the Company or any such holder may have furnished to
the other in writing in accordance herewith; provided, that notices of
change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this
Agreement. If the Company shall so request, any such successor, assign
or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities,
any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement.
24
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the Majority Holders of the
Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section
9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses
of all the holders of Registrable Securities shall be made available
for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at
the offices of the Company at the address thereof set forth in Section
9(c) above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties
in counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the
same instrument.
25
(k) If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this
letter and such acceptance hereof shall constitute a binding agreement
between each of the Purchasers and the Company. It is understood that
your acceptance of this letter on behalf of each of the Purchasers is
pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Crown Castle International Corp.
By:/s/ E. ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: E. ▇▇▇▇▇ ▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT
26
Accepted as of the date hereof:
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇▇▇▇▇, Sachs & Co.,
Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
BNY Capital Markets, Inc.,
Scotia Capital (USA) Inc.,
The Royal Bank of Scotland plc,
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of
the Purchasers
By: /s/ SIGNATURE ILLEGIBLE
-----------------------------
27
Exhibit A
Crown Castle International Corp.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ________*
---------------------
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Crown Castle International Corp. (the
"Company") 9 3/8% Senior Notes due 2011 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
------------------------------------------------------------------------------
enclosed materials as soon as possible as their rights to have the Securities
--------------------------------------
included in the registration statement depend upon their returning the Notice
and Questionnaire by _______. Please forward a copy of the enclosed documents to
each beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact the General Counsel of Crown Castle International
Corp., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telephone: (713)
▇▇▇-▇▇▇▇.
__________________
* Not less than 20 days from date of mailing.
A-1
Crown Castle International Corp.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Agreement (the "Exchange and Registration Rights
Agreement") between Crown Castle International Corp. (the "Company") and the
Purchasers named therein. Pursuant to the Exchange and Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form __ (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
9 3/8% Senior Notes due 2011 (the "Securities"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE _________. Beneficial owners of Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
NOTICE AND QUESTIONNAIRE
(1)
(a) (a) Full Legal Name of Selling Securityholder:
(b) (b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below are
held:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
_______________________________________________________
_______________________________________________________
_______________________________________________________
Telephone: ____________________________________________
Fax: __________________________________________________
Contact Person: _______________________________________
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:___
CUSIP No(s). of such Registrable Securities:____
(b) Principal amount of Securities of the Company other than
Registrable Securities beneficially owned:____
CUSIP No(s). of such other Securities:____
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:____
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:_____
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
A-4
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here: _______________________________________________
__________________________________________________________________________
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. If the Registrable
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agents' commissions. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at
the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities
exchange or quotation service on which the Registered Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or in
the over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with broker-
dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:________________________________________________
__________________________________________________________________________
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
A-5
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company: Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
(ii) With a copy to: Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
____________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:_________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ______ TO THE COMPANY'S COUNSEL AT:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Crown Castle International Corp.
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Crown Castle International Corp. (the "Company")
9 3/8% Senior Notes due 2011 (the "Senior Notes")
Dear Sirs:
Please be advised that __________ has transferred $_______ aggregate principal
amount of the above referenced Senior Notes pursuant to an effective
Registration Statement on Form ________ (File No. 333-________) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Senior Notes is named as a "Selling Securityholder" in
the Prospectus dated ________ or in supplements thereto, and that the aggregate
principal amount of the Senior Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
_______________________________
(Name)
By: _______________________________
(Authorized Signature)
B-1
