Exhibit 10.32
REGISTRATION RIGHTS AGREEMENT
Dated as of February 2, 2001
Among
SBA Communications Corporation
and
LEHMAN BROTHERS INC.,
SALOMON SMITH BARNEY INC.,
DEUTSCHE BANC ALEX. BROWN INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
(AN AFFILIATE OF CREDIT SUISSE FIRST BOSTON CORPORATION)
TD SECURITIES (USA) INC.
BARCLAYS CAPITAL INC.
WACHOVIA SECURITIES, INC.
as Initial Purchasers
TABLE OF CONTENTS
Page
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1. Definitions..........................................................1
2. Securities Subject to This Agreement.................................3
3. Registered Exchange Offer............................................3
4. Shelf Registration...................................................5
5. Liquidated Damages...................................................6
6. Registration Procedures..............................................7
7. Registration Expenses................................................4
8. Indemnification and Contribution....................................15
9. Rule 144A...........................................................17
10. Participation in Underwritten Registrations.........................17
11. Selection of Underwriters...........................................18
12. Miscellaneous.......................................................18
i
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of February 2, 2001 by and among SBA Communications Corporation, a
Florida corporation (the "COMPANY"), and Lehman Brothers Inc., Salomon Smith
Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation (an affiliate
of Credit Suisse First Boston Corporation), Deutsche Banc Alex. Brown Inc., TD
Securities (USA) Inc., Barclays Capital Inc. and Wachovia Securities, Inc. (each
an "INITIAL PURCHASER").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of January 26, 2001, by and among the Company and the Initial
Purchasers (the "PURCHASE AGREEMENT"), which provides for the sale by the
Company to the Initial Purchasers of $500,000,000 aggregate principal amount of
the Company's 10 1/4% Senior Notes due 2009 (the "NOTES"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchasers and their direct and indirect transferees and
assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligations to purchase the Notes under the Purchase
Agreement. Capitalized terms used but not specifically defined herein have the
respective meanings ascribed thereto in the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CLOSING DATE: The date on which the Notes were sold to the
Initial Purchasers.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of
(i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the New Notes to be
issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (iii) the delivery by the
Company of the New Notes in the same aggregate principal amount as the
aggregate principal amount of Transfer Restricted Notes that were
validly tendered by Holders thereof pursuant to the Exchange Offer.
EFFECTIVENESS TARGET DATE: As defined in Section 5(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the
Securities Act of the New Notes pursuant to a Registration Statement
pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Notes the opportunity
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to exchange all such outstanding Transfer Restricted Notes held by
such Holders for New Notes in an aggregate principal amount equal to
the aggregate principal amount of the Transfer Restricted Notes
tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the Prospectus which forms a
part thereof.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act and to
certain non-U.S. persons in offshore transactions meeting the
requirements of Rule 903 or 904 of Regulation S under the Securities
Act.
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of February 2, 2001, between
the Company and State Street Bank and Trust Company, as trustee (the
"TRUSTEE"), pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
INITIAL PURCHASERS: Lehman Brothers Inc., Salomon Smith Barney
Inc., Deutsche Banc Alex. Brown Inc., Donaldson, Lufkin & Jenrette
Securities Corporation (an affiliate of Credit Suisse First Boston
Corporation), TD Securities (USA) Inc., Barclays Capital Inc. and
Wachovia Securities, Inc.
LIQUIDATED DAMAGES: As defined in Section 5(a) hereof.
NASD: National Association of Securities Dealers, Inc.
NEW NOTES: The notes to be issued pursuant to the Indenture in
the Exchange Offer.
PARTICIPANT: As defined in Section 8(a) hereof.
PERSON: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement,
as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 5(a) hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to (a) an offering of New Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Notes
pursuant to the Shelf Registration Statement, which is filed pursuant
to the provisions of this Agreement, in either case, including the
Prospectus included therein, all amendments and supplements thereto
2
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended.
TRANSFER RESTRICTED NOTES: Each Note, until the earliest to occur
of (a) the date on which such Note has been exchanged by a person
other than a Broker-Dealer for a New Note in the Exchange Offer, (b)
following the exchange by a Broker-Dealer in the Exchange Offer of a
Note for a New Note, the date on which such New 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, (c) the date on which such Note has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (d) the date on
which such Note is eligible to be distributed to the public pursuant
to Rule 144 under the Securities Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) TRANSFER RESTRICTED NOTES. The securities entitled to the benefits of
this Agreement are the Transfer Restricted Notes.
(b) HOLDERS OF TRANSFER RESTRICTED NOTES. A Person is deemed to be a holder
of Transfer Restricted Notes (each such Person, a "Holder") whenever such Person
owns Transfer Restricted Notes.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or one of the events set forth in Section 4(a)(ii) has
occurred, the Company shall (i) use its best efforts to cause to be filed with
the Commission promptly after the Closing Date, but in no event later than 60
days after the Closing Date, a Registration Statement under the Securities Act
relating to the New Notes and the Exchange Offer, (ii) use its reasonable best
efforts to cause such Registration Statement to become effective no later than
150 days after the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
if applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the
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registration and qualification of the New Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) unless the Exchange Offer would not be permitted by
applicable law or Commission policy, the Company will commence the Exchange
Offer and use its best efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 180 days after the Closing Date
and (v) deliver the Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Transfer Restricted Securities that were validly
tendered by Holders thereof pursuant to the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the New Notes to be
offered in exchange for the Transfer Restricted Notes and to permit resales of
New Notes held by Broker-Dealers as contemplated by Section 3(c) below. The 60,
150 and 180 day periods referred to in (i), (ii) and (iv) of this Section 3(a)
shall not include any period during which the Company is pursuing a Commission
ruling pursuant to Section 6(a)(i) below.
(b) The Company shall use its reasonable best efforts to cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
business days. The Company shall cause the Exchange Offer to comply in all
material respects with all applicable federal and state securities laws. No
securities other than the New Notes shall be included in the Exchange Offer
Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Notes that are Transfer Restricted
Notes and that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted Notes
acquired directly from the Company), may exchange such Notes pursuant to the
Exchange Offer; provided, however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of New Notes held by any such Broker-Dealer except to the
extent required by the Commission.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of New Notes acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer Registration Statement is declared effective.
4
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) SHELF REGISTRATION. If (i) the Company is not required to file an
Exchange Offer Registration Statement or to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) if any Holder of Transfer Restricted Notes that is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) or an
institutional "accredited investor" (as defined in Rule 501(A)(1), (2), (3) or
(7) under the Securities Act) shall notify the Company at least 30 business days
prior to the Consummation of the Exchange Offer (A) that such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer or (B) that such Holder may not resell the New Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and that
the Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) that such Holder
is a Broker-Dealer and holds Notes acquired directly from the Company or one of
its affiliates, then the Company shall in lieu of, or in the event of (ii)
above, in addition to, effecting the registration of the New Notes pursuant to
the Exchange Offer Registration Statement use its reasonable best efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "SHELF
REGISTRATION STATEMENT"), on or prior to the earlier to occur of (1)
the 60th day after the date on which the Company determines that it is
not required to file the Exchange Offer Registration Statement or (2)
the 60th day after the date on which the Company receives notice from
a Holder of Transfer Restricted Notes as contemplated by clause (ii)
above (such earlier date being the "SHELF FILING DEADLINE"), which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Notes the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 150th day after the Shelf
Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Notes entitled to the benefit of this Section 4(a) and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the earlier of (a) the second anniversary
of the Closing Date and (b) the date on which all Transfer Restricted Notes
covered by such Shelf Registration Statement shall have been sold pursuant
thereto.
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(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Notes may include
any of its Transfer Restricted Notes in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Company
in writing, within 10 days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Notes shall be entitled to Liquidated Damages
pursuant to Section 5 hereof unless and until such Holder shall have used its
best efforts to provide all such reasonably requested information. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.
5. Liquidated Damages
(a) If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or to be
usable in connection with resales of Transfer Restricted Notes without being
succeeded within two business days by a post-effective amendment to such
Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), additional cash interest ("Liquidated Damages") shall
accrue to each Holder of the Transfer Restricted Notes adversely affected by the
Registration Default from and during the continuance of the Registration Default
in an amount equal to $.05 per week per $1,000 of the principal amount of
Transfer Restricted Notes held by such Holder. The amount of Liquidated Damages
will increase by an additional $.05 per week per $1,000 of the principal amount
of Transfer Restricted Notes with respect to any period in which the
Registration Default has continued for more than 90 days 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 of the principal amount of
Transfer Restricted Notes. All accrued Liquidated Damages shall be paid to
Holders by the Company in the same manner as interest is paid under the Notes.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Notes, the accrual of Liquidated Damages with respect to
such Transfer Restricted Notes will cease.
All obligations of the Company set forth in the preceding paragraph that
have accrued and are outstanding with respect to any Transfer Restricted Note at
the time such security ceases to be a Transfer Restricted Note shall survive
until such time as all such obligations with respect to such Transfer Restricted
Note shall have been satisfied in full.
(b) The Company shall notify the Trustee within one business day after each
and every date on which an event occurs in respect of which Liquidated Damages
are required to be paid. Liquidated Damages shall be paid by depositing
Liquidated Damages with the Trustee, in trust, for the benefit of the Holders of
the Notes, on or before the applicable Interest Payment
6
Date (as defined in the Notes) (whether or not any payment other than Liquidated
Damages is payable on such Notes), in immediately available funds in sums
sufficient to pay the Liquidated Damages then due to such Holders. Each
obligation to pay Liquidated Damages shall be deemed to accrue from the
applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the Exchange
Offer, the Company shall comply with all of the provisions of Section 6(c)
below, shall use its reasonable best efforts to effect such exchange to permit
the sale of Transfer Restricted Notes being sold in accordance with the intended
method or methods of distribution thereof and shall comply with the following
provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter
or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The
Company hereby agrees, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff
an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Notes shall furnish, upon the request of the Company, prior
to the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it
is not an affiliate of the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the New Notes to be
issued in the Exchange Offer and (C) it is acquiring the New Notes in
its ordinary course of business. In addition, all such Holders of
Transfer Restricted Notes shall otherwise cooperate in the Company's
preparations for the Exchange Offer. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position
of the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including Brown & Wood LLP (available February 7, 1997), and any
no-action letter obtained pursuant to clause (i) above) and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security
holder information required by Item 507 or 508, as
7
applicable, of Regulation S-K if the resales are of New Notes obtained
by such Holder in exchange for Notes acquired by such Holder directly
from the Company.
(iii) Prior to the effectiveness of the Exchange Offer
Registration Statement, to the extent required by the Commission, the
Company shall provide a supplemental letter to the Commission (A)
stating that the Company is registering the Exchange Offer in reliance
on the position of the Commission enunciated in EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), MORGAN STANLEY AND CO., INC.
(available June 5, 1991), BROWN & WOOD LLP (available February 7,
1997) and, if applicable, any no-action letter obtained pursuant to
clause (i) above and (B) including a representation that the Company
has not entered into any arrangement or understanding with any Person
to distribute the New Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the New Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the New Notes
received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf Registration
Statement, the Company shall comply with all the provisions of Section 6(c)
below and shall use its reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Notes being sold in accordance with
the intended method or methods of distribution thereof, and pursuant thereto the
Company will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer Restricted Notes in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Notes (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Notes
during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4
8
hereof, as applicable, or such shorter period as will terminate when
all Transfer Restricted Notes covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) in the case of a Shelf Registration Statement, and for so
long as the Company is required to keep such Shelf Registration
Statement effective, advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Notes for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or (D) of the existence
of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Notes under state securities or Blue Sky laws, the Company
shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish to
each of the selling or exchanging Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement, if any), which
documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five business days,
and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which selling Holders of a majority in aggregate
principal amount of Transfer Restricted Notes covered by such
Registration Statement or the underwriter(s), if any, shall reasonably
object within five business days after the receipt thereof. A selling
Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus
9
or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;
(v) in the case of a Shelf Registration Statement, promptly
prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, if any, provide
copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's representatives available
for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) in the case of a Shelf Registration Statement, subject to
an express agreement to keep such information confidential, make
available at reasonable times for inspection by the selling Holders,
any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors, managers and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to
its effectiveness;
(vii) in the case of a Shelf Registration Statement, if
requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary,
such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Notes, information with respect to the principal
amount of Transfer Restricted Notes being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Notes to be sold in such offering,
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) in the case of a Shelf Registration Statement, furnish,
upon request, to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein, if
any, and all exhibits (including exhibits incorporated therein by
reference);
(ix) in the case of a Shelf Registration Statement, deliver to
each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement thereto;
10
(x) in the case of a Shelf Registration Statement, enter into
such agreements (including an underwriting agreement in a form
customary for similar transactions) and make such representations and
warranties, and take all such other actions in connection therewith,
in order to expedite or facilitate the disposition of the Transfer
Restricted Notes pursuant to any Registration Statement contemplated
by this Agreement, all to such extent as may be requested by any
purchaser or by any Holder of Transfer Restricted Notes or
underwriter, if any, in connection with any sale or resale pursuant to
any Registration Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the Company shall:
(A) upon request, furnish (or in the case of paragraphs (i)
and (iii), use its reasonable best efforts to furnish) to each
selling Holder and each underwriter, if any, in such substance
and scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of the effectiveness
of the Shelf Registration Statement, signed by (y) the
Chairman of the Board, its President or a Vice President and
(z) the Chief Financial Officer of the Company, confirming,
as of the date thereof, such matters as such parties may
reasonably request;
(2) an opinion, dated the date of the effectiveness of
the Shelf Registration Statement, of counsel for the
Company, covering such matters as such parties may
reasonably request, and in any event including a statement
to the effect that such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public
accountants for the Company, the Initial Purchasers'
representatives and the Initial Purchasers' counsel in
connection with the preparation of such Registration
Statement and the related Prospectus and have considered the
matters required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements, and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to a large extent upon facts provided to such
counsel by officers and other representatives of the Company
and without independent check or verification), no facts
came to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at the
time such Registration Statement or any post-effective
amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date,
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other
financial and statistical data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
11
(3) a customary comfort letter, dated the date of the
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary
underwritten offerings.
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions
and procedures of Section 8 hereof with respect to all parties to
be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Company pursuant to this clause (x), if any.
If at any time the representations and warranties of
the Company contemplated in clause (A)(1) above cease to be
true and correct, the Company shall so advise the Initial
Purchaser and the underwriter(s), if any, and each selling
Holder promptly and, if requested by such Persons, shall
confirm such advice in writing.
(xi) in the case of a Shelf Registration Statement, prior to
any public offering of Transfer Restricted Notes, cooperate with the
selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Notes under the Securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Notes covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required to register
or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to service of process in
suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it
is not now so subject;
(xii) in the case of a Shelf Registration Statement, shall
issue, upon the request of any Holder of Notes covered by the Shelf
Registration Statement, New Notes in the same amount as the Notes
surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder, such New Notes to be registered in the name
of such Holder or in the name of the purchaser(s) of such Notes, as
the case may be; in return, the Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) in the case of a Shelf Registration Statement, cooperate
with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Notes to be sold and not bearing any restrictive
legends and enable such Transfer Restricted Notes to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior
to any sale of Transfer Restricted Notes made by such underwriter(s);
12
(xiv) use its reasonable best efforts to cause the Transfer
Restricted Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Notes, subject to the proviso contained in
clause (xii) above;
(xv) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Notes, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(xvi) obtain CUSIP numbers for all Transfer Restricted Notes not
later than the effective date of the Registration Statement and
provide certificates for the Transfer Restricted Notes;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Notes to consummate the
disposition of such Transfer Restricted Notes; provided, however, that
the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action
that would subject it to service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xviii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earning statement meeting the requirements of Rule 158
under the Securities Act (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in
which Transfer Restricted Notes are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to
the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the TIA, and execute and use its best
efforts to cause the Trustee to execute all documents that may be
required to effect such changes and all
13
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Note
that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted
Notes pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing (the "ADVICE") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company each Holder will deliver to
the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Notes that was current at
the time of receipt of such notice. In the event the Company shall
give any such notice, the time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice.
7. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any purchaser or Holder with the
NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates
for the New Notes to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing Notes
on a national securities exchange or automated quotation system, and
the obtaining of a rating of the Notes, if applicable; and (vi) all
fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
14
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in connection with
any delivery of a Prospectus contained in an Exchange Offer Registration
Statement by any participating Broker-Dealer or any Initial Purchaser, as
applicable, who seeks to sell New Notes, the Company shall indemnify and hold
harmless each Holder of Transfer Restricted Notes included within any such Shelf
Registration Statement and each participating Broker-Dealer or Initial Purchaser
selling New Notes, and each person, if any, who controls any such person within
the meaning of Section 15 of the Securities Act (each, a "Participant") from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Notes) to which such
Participant or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any such Registration Statement or any
prospectus forming part thereof or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any such
Registration Statement or any prospectus forming part thereof or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Participant
specifically for inclusion therein; and provided further that as to any
preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any such Participant or any controlling person
of such Participant on account of any loss, claim, damage, liability or action
arising from the sale of the New Notes to any person by that Participant if (i)
that Participant failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act and (ii) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
preliminary Prospectus was corrected in the Prospectus, unless, in each case,
such failure resulted from non-compliance by the Company with Section 6(c)
hereof. The foregoing indemnity agreement is in addition to any liability which
the Company may otherwise have to any Participant or to any controlling person
of that Participant.
(b) Each Participant, severally and not jointly, shall indemnify and hold
harmless the Company, each of its directors, officers, employees or agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer, employees or agents or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary Prospectus, Registration Statement or Prospectus or in any amendment
or supplement thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein in light of
15
the circumstances under which they were made, not misleading, but in each case
only to the extent that the 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 or on behalf of that Participant
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer, employee or agent or controlling person promptly for any
legal or other expenses reasonably incurred by the Company or any such director,
officer, employee or agent or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and such indemnified party
shall have notified the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Participants and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Participants against the indemnifying party under this Section 8 if, in
the reasonable judgment of the indemnified party it is advisable for the
indemnified party and those Participants, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the indemnifying
party. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel). Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8, shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent
16
shall not be unreasonably withheld), but if settled with its written consent or
if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, in such proportion as
shall be appropriate to reflect the relative fault of the Company on the one
hand and the Participants on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to 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 the Company or the
Participants, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Participants agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any 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 Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
9. Rule 144A.
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Notes remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Notes in connection
with any sale thereof and any prospective purchaser of such Transfer
Restricted Notes from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act, if any, in order
to permit resales of such Transfer Restricted Notes pursuant to Rule
144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Notes on the basis
17
provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Notes covered by the Shelf
Registration Statement who desire to do so may sell such Transfer
Restricted Notes in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or
managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer
Restricted Notes included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory to the
Company.
12. Miscellaneous.
(a) REMEDIES. The Company agrees that monetary damages (including
Liquidated Damages) would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Except for the Registration
Rights Agreement dated as of March 5, 1997 between the Company, Steven E.
Bernstein, Ronald G. Bizick, II and Robert Grobstein as assigned, and the
Registration Rights Agreement, dated as of March 6, 1997, among the Company and
the Preferred Shareholders, the Company has not previously entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any action,
or permit any change to occur, with respect to Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer
unless such action or change is required by applicable law.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Notes being tendered or registered.
18
(e) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address of such Holder maintained
by the Registrar under the Indenture; and
(ii) if to the Company:
Mr. Jeff Stoops, President
SBA Communications Corporation
One Town Center Road
Third Floor
Boca Raton, FL 33486
Facsimile: (561)
With copies to:
Mr. Thomas Hunt, General Counsel
SBA Communications Corporation
One Town Center Road
Third Floor
Boca Raton, FL 33486
Facsimile: (561)
Robert Boehm, Esq.
Akerman, Senterfitt & Eidson, P.A.
SunTrust International Center
28th Floor
One S.E. 3rd Avenue
Miami, Florida 33134-1714
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next business day, if timely delivered to an
air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee
at the address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Notes; provided, however, that this Agreement
shall not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired Transfer
Restricted Notes from such Holder.
19
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other transaction
documents is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Transfer Restricted Notes.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(l) REQUIRED CONSENTS. Whenever the consent or approval of Holders of a
specified percentage of Transfer Restricted Notes is required hereunder,
Transfer Restricted Notes held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SBA COMMUNICATIONS CORPORATION
By: /s/ Jeffrey A. Stoops
--------------------------------------
Name: Jeffrey A. Stoops
Title: President
Accepted as of the date hereof:
LEHMAN BROTHERS INC.,
as Representative of the Initial Purchasers
By: /s/ Peter Toal
-------------------------------
Name: Peter Toal
Title: Managing Director
SALOMON SMITH BARNEY INC.,
as Representative of the Initial Purchasers
By: /s/ Kevin M. Sisson
--------------------------------
Name: Kevin M. Sisson
Title: Vice President
21