EXHIBIT 4.3
TSI MERGER SUB, INC.
TO BE MERGED WITH AND INTO
TSI TELECOMMUNICATION SERVICES INC.
12 3/4% SENIOR SUBORDINATED NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
EACH OF THE GUARANTORS NAMED HEREIN
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
February 14, 2002
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TSI Merger Sub, Inc., a Delaware corporation ("TSI Merger Sub"), which
shall be merged with and into TSI Telecommunication Services Inc. ("TSI",
references herein to the "Company" shall refer to TSI Merger Sub before the
Merger and to TSI after the consummation of the Merger), proposes to issue and
sell to the Purchaser (as defined herein) upon the terms set forth in the
Purchase Agreement (as defined herein) its 12 3/4% Senior Subordinated Notes due
2009, which are unconditionally guaranteed by TSI Telecommunication Holdings,
Inc., a Delaware corporation and the direct parent of the Company ("TSI Inc."),
TSI Telecommunication Holdings, LLC, a limited liability company and the direct
parent of TSI Inc., and each of TSI's current and future Domestic Subsidiaries,
including TSI Networks Inc. (collectively, the "Guarantors"). As an inducement
to the Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchaser thereunder, the Company and the
Guarantors agree with the Purchaser for the benefit of holders (as defined
herein) from time to time of the Transfer Restricted Securities (as defined
herein) as follows:
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1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings (capitalized terms not defined herein shall have the meanings
assigned to them in the Indenture or Purchase Agreement, as the case may
be):
"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 Exchange and Registration Rights Agreement.
The term "BROKER-DEALER" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"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 Offer
Registration Statement effective or as of which the Exchange Offer 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 Transfer Restricted
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 NOTES" shall have the meaning assigned thereto in Section
2(a) hereof.
"EXCHANGE OFFER" shall have the meaning assigned thereto in Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(a) hereof.
"EXCHANGE REGISTRATION" shall have the meaning assigned thereto in
Section 3(c) hereof.
The term "HOLDER" shall mean the Purchaser and other persons who
acquire Transfer Restricted Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Transfer Restricted Securities.
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"INDENTURE" shall mean the Indenture, dated as of February 14, 2002,
between the Company, the Guarantors and The Bank of New York, as Trustee, as the
same shall be amended from time to time.
"LIQUIDATED DAMAGES" shall have the meaning assigned thereto in
Section 2(c) hereof.
"MERGER" means the merger of TSI Merger Sub with and into TSI pursuant
to the Merger Agreement (as defined in the Indenture).
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement
and Selling Security holder Questionnaire substantially in the form of EXHIBIT A
hereto.
The term "PERSON" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated as of
February 5, 2002, between the Purchaser, the Guarantors and the Company relating
to the Securities.
"PURCHASER" shall mean ▇▇▇▇▇▇ Brothers Inc.
"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
Notes 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 distributing Exchange Notes and (iv) a holder
that is a broker-dealer, but only with respect to Transfer Restricted Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Transfer Restricted Securities acquired by the broker-dealer directly from the
Company.
"RULE 144," "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, collectively, the 12 3/4% Senior Subordinated
Notes due 2009 of the Company, to be issued and sold to the Purchaser, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of the guarantees provided
for in the Indenture (the "Guarantees") and, unless the context otherwise
requires, any reference herein to a "Security," an "Exchange Note" or a
"Transfer Restricted Security" shall include a reference to the related
Guarantees.
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"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.
"TRANSFER RESTRICTED SECURITIES" shall mean the Securities; until:
(1) the date on which such Security has been exchanged by a Person
other than a broker-dealer for an Exchange Note in the Exchange Offer;
(2) following the exchange by a broker-dealer in the Exchange Offer
of a Security for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer Registration
Statement;
(3) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement; or
(4) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act.
"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
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights 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 and the
Guarantors agree to file under the Securities Act, on or prior to 90 days
after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Offer 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 and guaranteed by the Guarantors, which debt securities and
guarantees are substantially identical to the Securities and the related
Guarantees, respectively (and are entitled to the benefits of a trust
indenture which is 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
Liquidated Damages as contemplated in Section 2(c) below
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(such new debt securities hereinafter called "Exchange Notes"). The Company
and the Guarantors agree to use all commercially reasonable efforts to have
the Exchange Offer Registration Statement declared effective by the
Commission on or prior to 180 days after 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. Unless the Exchange Offer would not be permitted by applicable
law or Commission policy, the Company and the Guarantors further agree to use
all commercially reasonable efforts to commence and complete the Exchange
Offer on or prior to 45 business days, or longer, if required by the federal
securities laws, after such date on which the Exchange Offer Registration
Statement was declared effective by the Commission, exchange Exchange Notes
for all Transfer Restricted 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 and related guarantees received by holders other than Restricted
Holders in the Exchange Offer for Transfer Restricted 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 Notes for all outstanding Transfer Restricted Securities pursuant to
the Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Notes for all Transfer Restricted Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer. The Company agrees (x) to include in the Exchange Offer
Registration Statement a prospectus for use in any resales by any holder of
Exchange Notes that is a broker-dealer and (y) to keep such Exchange Offer
Registration Statement effective for a period (the "Resale Period") beginning
when Exchange Notes 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 Transfer
Restricted Securities. With respect to such Exchange Offer 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) the Company and the Guarantors are not (A) required to file the
Exchange Offer Registration Statement; or (B) permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law
or Commission policy, (ii) any holder of Transfer Restricted Securities
notifies the Company prior to the 20th day following the consummation of the
Exchange Offer that (X) it is prohibited by applicable law or Commission
policy from participating in the Exchange Offer; or (Y) that it may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for resales; or
(Z) that it is a broker-dealer and owns Securities acquired directly from the
Company or an affiliate of the Company, the Company and the Guarantors will
use all commercially reasonable efforts to file under the Securities Act on
or prior to 30 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 Transfer Restricted
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission (such filing, the "Shelf Registration" and such registration
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statement, the "Shelf Registration Statement"). The Company and the
Guarantors agree 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 after such obligation arises 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 Transfer Restricted 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 Transfer Restricted Securities unless such holder is an Electing
Holder, and (y) after the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Transfer Restricted 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 Transfer Restricted 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)(ii) 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, 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 and the Guarantors have not filed the
Exchange Offer 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 Offer
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 (the "Effectiveness
Target Date"), or (iii) the Exchange Offer has not been consummated within 30
business days of the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) any Exchange Offer Registration
Statement or Shelf Registration Statement required by Section 2(a) or 2(b)
hereof is declared effective but thereafter ceases to be effective or usable
in connection with resales of Transfer Restricted Securities during the time
period specified herein (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), liquidated damages ("Liquidated Damages"), in
addition to the Base Interest, shall accrue in an amount equal to $.05 per
week per $1,000 principal amount of Securities held by the Holders with
respect to the first 90-day period immediately following the occurrence of
the first Registration Default. The amount of Liquidated Damages will
increase by an additional $.05 per week per $1,000 principal amount of
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 principal
amount of Securities. Following the cure of all Registration Defaults, the
accrual of Liquidated
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Damages will cease. All accrued Liquidated Damages will be paid by the
Company and the Guarantors on each Interest Payment Date (as defined in the
Indenture) to the Global Note Holder (as defined in the Indenture) by wire
transfer of immediately available funds or by federal funds check and to
Holders of Certificated Notes (as defined in the Indenture) by wire transfer
to the accounts specified by them or by mailing checks to their registered
addresses if no such accounts have been specified.
(d) 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 and the Guarantors file 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 Offer or the Shelf
Registration, 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 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 Notes as contemplated by Section 2(a) (the "Exchange
Registration"), if applicable, the Company and the Guarantors shall, as soon
as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 90 days after the Closing Date, an Exchange
Offer Registration Statement on any form which may be utilized by the
Company and which shall permit the Exchange Offer and resales of Exchange
Notes 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 Offer Registration Statement to become effective as
soon as practicable thereafter, but no later than 180 days after the
Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange Offer
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange Offer
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 Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Notes with such number of copies of the
prospectus included therein (as then
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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 Notes;
(iii) with respect to a Shelf Registration Statement, promptly
advise each broker-dealer that has requested or received copies of the
prospectus included in such registration statement, and, if requested by
such broker-dealer, confirm such advice in writing, (A) when such Exchange
Offer 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 Offer 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 Offer
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 Offer 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 Notes 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 Offer 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(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Notes, 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 Notes during
the Resale Period, 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 all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Exchange Offer
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
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(vi) use all commercially reasonable efforts to (A) register or
qualify the Exchange Notes 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 Notes to consummate the disposition thereof
in such jurisdictions; PROVIDED, HOWEVER, that neither the Company nor the
Guarantors shall 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) provide a CUSIP number for all Exchange Notes, not later
than the applicable Effective Time;
(viii) use all commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange Offer
Registration Statement, an earning statement 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 and the Guarantors' obligations with
respect to the Shelf Registration, if applicable, the Company and the
Guarantors shall:
(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 Transfer Restricted
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 all commercially
reasonable efforts to cause such Shelf Registration Statement to become
effective as soon as practicable but in any case within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and Questionnaire
to the holders of Transfer Restricted 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 Transfer Restricted
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 Transfer Restricted
Securities shall have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
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(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Transfer Restricted 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 Transfer Restricted
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) as soon as practicable 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
simultaneously with or prior to its being used or filed with the
Commission;
(v) use commercially reasonable efforts to comply with the
provisions of the Securities Act with respect to the disposition of all of
the Transfer Restricted 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;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, if such person notifies
the Company of its status as an underwriter), 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 Transfer Restricted Securities
pursuant to the Shelf Registration such financial and other information and
books and records of the Company, and cause the officers, 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 (and, if requested by the Company, will enter into a
confidentiality agreement providing that), until such time as
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(A) such information becomes a matter of public record (whether by virtue
of its inclusion in such registration statement or otherwise), 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) with respect to a Shelf Registration Statement, promptly
advise 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, if requested by each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof, confirm such advice
in writing, (A) when such 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 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
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 all commercially reasonable 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;
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(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 Transfer Restricted Securities, including information with
respect to the principal amount of Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted 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;
(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
Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xii) use all commercially reasonable efforts to (A) register
or qualify the Transfer Restricted 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
12
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 Transfer Restricted Securities; PROVIDED,
HOWEVER, that neither the Company nor the Guarantors shall 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 changes to its
certificate of incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) unless any Transfer Restricted 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 Transfer Restricted Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Transfer Restricted Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Transfer
Restricted 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 Transfer Restricted Securities;
(xiv) provide a CUSIP number for all Transfer Restricted
Securities, not later than the applicable Effective Time;
(xv) enter into on one occasion, an underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting agreement
or similar agreement, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other actions
in connection therewith as any Electing Holders aggregating at least 20% in
aggregate principal amount of the Transfer Restricted Securities at the
time outstanding shall request in order to expedite or facilitate the
disposition of such Transfer Restricted Securities;
(xvi) if an offering contemplated by the Shelf Registration is
an underwritten offering, (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 managing underwriters, if
any, or as any Electing Holders of at least 20% in aggregate principal
amount of the Transfer Restricted Securities at the time outstanding 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
13
Statement (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Transfer Restricted
Securities, dated the date of the closing under the underwriting agreement
relating thereto); (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 any Electing Holders of at least 20% in aggregate
principal amount of the Transfer Restricted Securities at the time
outstanding or the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof 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 or the Guarantors; and (E)
undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xvii) notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any provision
of this Exchange and Registration Rights 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;
(xviii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted
Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Shelf Registration
Statement is an
14
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Transfer Restricted Securities, (B)
indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 6 hereof (or to
such other customary extent as may be requested by such underwriter), 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; and
(xix) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its securityholders as soon as practicable but in
any event not later than eighteen months after the effective date of such
Shelf Registration Statement, an earning statement 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).
(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
Transfer Restricted 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 Transfer Restricted 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 (i) destroy, or (ii) deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Electing Holder's possession of the prospectus covering such Transfer
Restricted 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 Questionnaire,
the Company 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 Transfer Restricted 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
15
such Transfer Restricted Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder's intended method of
disposition of such Transfer Restricted 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 Transfer
Restricted 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) 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 in a transaction or a chain of transactions
not involving a public offering.
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
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters 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 any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders or underwriters 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 in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee 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
Electing Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities held by Electing 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
16
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Transfer Restricted
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 Transfer Restricted
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions and transfer taxes attributable to the
sale of such Transfer Restricted 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 and the Guarantors represent and warrant to, and agree
with, the Purchaser and each of the holders from time to time of Transfer
Restricted Securities that:
(a) Each registration statement covering Transfer Restricted 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 Transfer
Restricted 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 Transfer Restricted 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 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 Transfer Restricted 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
17
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 Transfer Restricted Securities expressly for
use therein.
(c) The compliance by the Company and the Guarantors with all of the
provisions of this Exchange and Registration Rights 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, the Guarantors or their
respective subsidiaries is a party or by which the Company, the Guarantors or
their respective subsidiaries is bound or to which any of the property or
assets of the Company, the Guarantors or their respective subsidiaries 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 the Guarantors or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company,
the Guarantors or their respective subsidiaries or 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 and the Guarantors of the transactions
contemplated by this Exchange and Registration Rights 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 Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the Guarantors.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY AND THE GUARANTORS. The Company and each
of the Guarantors, jointly and severally, will indemnify and hold harmless
each of the holders of Transfer Restricted Securities included in an Exchange
Registration Statement, each of the Electing Holders of Transfer Restricted
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 Transfer Restricted 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
Transfer Restricted Securities were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or furnished
by the Company or any Guarantor to any such holder, 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, and will reimburse such holder, such Electing Holder, such agent
and such underwriter for
18
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 neither the Company nor the Guarantors
shall 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
Company and the Guarantors may require, as a condition to including any
Transfer Restricted Securities in any registration statement filed pursuant
to Section 2(b) hereof and to entering into any underwriting agreement with
respect thereto, that the Company and each of the Guarantors shall have
received an undertaking reasonably satisfactory to it from the Electing
Holder of such Transfer Restricted Securities and from each underwriter named
in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, the Guarantors, and all other
holders of Transfer Restricted Securities, against any losses, claims,
damages or liabilities to which the Company, the Guarantors or such other
holders of Transfer Restricted 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 or any Guarantor 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 such Electing
Holder or underwriter expressly for use therein, and (ii) reimburse the
Company and the Guarantors for any legal or other expenses reasonably
incurred by the Company and the Guarantors in connection with investigating
or defending any such action or claim as such expenses are incurred;
PROVIDED, HOWEVER, that no such Electing Holder 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 Transfer Restricted Securities
pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above 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 omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. 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
19
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) 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 by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
resulted in such losses, 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 Transfer
Restricted 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 Transfer Restricted Securities underwritten by it and
20
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 all 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 Transfer Restricted Securities registered or under-written, as the
case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under this Section 6
shall be in addition to any liability which the Company or any of the
Guarantors 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 extent, upon the same terms and
conditions, to each officer and director of the Company or the Guarantors
(including any person who, with his or her consent, is named in any
registration statement as about to become a director of the Company or the
Guarantors) and to each person, if any, who controls the Company within the
meaning of the Securities Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Transfer Restricted 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 Electing Holders holding at least a majority in aggregate
principal amount of the Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted 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 AND RULE 144A.
The Company covenants to the holders of Transfer Restricted 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 section 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 Transfer Restricted Securities may reasonably request, all to the
extent required from time to
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time to enable such holder to, sell Transfer Restricted Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 and Rule 144A 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 Transfer
Restricted Securities in connection with that holder's sale pursuant to Rule 144
or Rule 144A, 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 and each of the Guarantors
represents, warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Transfer Restricted Securities
or any other securities which would be inconsistent with the terms contained
in this Exchange and Registration Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company or any of the Guarantors fails to
perform any of its obligations hereunder and that the Purchaser and the
holders from time to time of the Transfer Restricted Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchaser and such holders, in addition to any other remedy to which they may
be entitled at law or in equity, shall the entitled to compel specific
performance of the obligations of the Company and the Guarantors under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights 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 delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company or
the Guarantors, to any of them at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr., Esq. and if to a holder, to the
address of such holder set forth in the security register or other records of
the Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange and
Registration Rights 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 Transfer Restricted Securities and the respective
successors and assigns of the parties hereto and such holders. In the event
that any transferee of any holder of Transfer Restricted Securities shall
acquire Transfer Restricted 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 Transfer Restricted Securities shall be held
subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Transfer Restricted Securities such
transferee shall be entitled to
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receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold
the Transfer Restricted 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 Exchange and
Registration Rights 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 Transfer Restricted
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 Transfer Restricted Securities pursuant to the Purchase Agreement and the
transfer and registration of Transfer Restricted Securities by such holder
and the consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS 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 Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning or
interpretation of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
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 Exchange and Registration Rights Agreement supersedes
all prior agreements and understandings between the parties with respect to
its subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and Registration
Rights 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 holders of at least a majority in aggregate
principal amount of the Transfer Restricted Securities at the time
outstanding. Each holder of any Transfer Restricted 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 Transfer Restricted
Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Transfer
Restricted Securities shall be made available for inspection and copying on
any business day by any holder of Transfer Restricted Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Transfer Restricted Securities under the Securities, the Indenture
and this Exchange and Registration Rights 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.
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(j) COUNTERPARTS. This Exchange and Registration Rights 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.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, the Guarantors and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of the Purchaser, this letter and such
acceptance hereof shall constitute a binding agreement between the Purchaser,
the Guarantors and the Company.
Very truly yours,
TSI Merger Sub, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
TSI Telecommunication Holdings, LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
TSI Telecommunication Holdings, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
TSI Networks Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
TSI Finance Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
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