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EXHIBIT 4.1
EXECUTION COPY
INTERMEDIA CAPITAL PARTNERS IV, L.P.
INTERMEDIA PARTNERS IV CAPITAL CORP.
$292,000,000
11 1/4% Senior Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
July 19, 1996
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Toronto Dominion Securities (USA) Inc.
31 West 52nd Street
New York, New York 10019
Ladies and Gentlemen:
InterMedia Capital Partners IV, L.P., a California limited
partnership ("ICP-IV"), and InterMedia Partners IV Capital Corp., a Delaware
corporation and a wholly owned subsidiary of ICP-IV ("IPCC" and, together with
ICP-IV, the "Issuers"), propose, jointly and severally, to issue and sell to
certain purchasers (the "Initial Purchasers"), upon the terms set forth in a
Purchase Agreement of even date herewith (the "Purchase Agreement"), its 11 1/4%
Senior Notes Due 2006 (the "Notes") (the "Initial Placement"). As an inducement
to the Initial Purchasers to purchase the Notes, and in satisfaction of a
condition to your obligations under the Purchase Agreement, the Issuers agree
with you for the benefit of the holders from time to time of the Notes
(including the Initial Purchasers) (each of the foregoing a "Holder" and,
collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Affiliate" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
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otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" means July 30, 1996.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other trading
activities, for New Notes.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Notes, dated
as of the Closing Date, among the Issuers and as trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
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"New Notes" means debt securities of the Issuers identical in
all material respects to the Notes (except that the transfer restrictions
pertaining to such Notes will be modified or eliminated, as appropriate), to be
issued under the Indenture.
"Notes" has the meaning set forth in the preamble hereto.
"Offering Memorandum" means the offering memorandum, dated
July 19, 1996, relating to the offer and sale of the Notes.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or the New Notes covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
principal amount of the New Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or the
New Notes pursuant to the provisions of this Agreement, Amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof, which
covers some or all of the Notes or New Notes, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
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"Trustee" means the trustee with respect to the Notes or New
Notes, as applicable, under the Indenture.
"Underwriter" means any underwriter of Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Notes by
Exchanging Dealers; Private Exchange.
(a) The Issuers shall prepare and, as soon as practicable but
not later than 45 days following the Closing Date, shall file with the
Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Issuers shall use their best efforts
(i) to cause the Exchange Offer Registration Statement to become
effective under the Act at the earliest possible time but not later
than 120 days after the Closing Date and (ii) to consummate the
Registered Exchange Offer on the earliest practicable date after the
Exchange Offer Registration Statement has become effective but not
later than 30 days thereafter.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Notes for New Notes (assuming
that such Holder is not an affiliate of either of the Issuers within
the meaning of the Act, acquires the New Notes in the ordinary course
of such Holder's business and has no arrangements with any person to
participate in the distribution of the New Notes) to trade such New
Notes from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of
the United States.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for not
less than 30 days (or longer if required by applicable law)
and not more than 60 days (or longer if required by applicable
law) after the date notice thereof is mailed to the Holders;
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(iii) utilize the services of a depository for the
Registered Exchange Offer with an address in the Borough of
Manhattan, the City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, New Notes equal in principal
amount to the Notes of such Holder so accepted for exchange.
(e) You and the Issuers acknowledge that, pursuant to
interpretations by the Commission's staff of Section 5 of the Act, and
in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of
any New Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Notes acquired for its own
account as a result of market-making activities or other trading
activities. Accordingly, the Issuers shall:
(i) include the information set forth in Annex A
hereto on the cover of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, and in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
forming a part of the Exchange Offer Registration Statement,
and include the information set forth in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective under the
Act during the Exchange Offer Registration Period for delivery
by Exchanging Dealers in connection with sales of New Notes
received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below.
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(f) In the event that any Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect
to the exchange of Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement
as contemplated by Section 3 hereof, at the request of such Initial
Purchaser, the Issuers shall issue and deliver to such Initial
Purchaser, or to the party purchasing New Notes from such Initial
Purchaser registered under such Shelf Registration Statement, in
exchange for such Notes, a like principal amount of New Notes. The
Issuers shall seek to cause the CUSIP Service Bureau to issue the same
CUSIP number for such New Notes as for New Notes issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. If: (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not consummated within 150
days of the Closing Date; (iii) the Holders of a majority in principal amount of
Notes determine in good faith that (x) they are prohibited by law or Commission
policy from participating in the Registered Exchange Offer or (y) the Exchange
Notes such Holders would receive in the Registered Exchange Offer could only be
reoffered and resold by such Holders upon compliance with the registration and
prospectus delivery requirements of the Act and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for
resales; or (iv) any Initial Purchaser that participates in the Registered
Exchange Offer or acquires New Notes pursuant to Section 2(f) hereof does not
receive freely tradable New Notes in exchange for Notes constituting any portion
of an unsold allotment (it being understood that, for purposes of this Section
3, (x) the requirement that an Initial Purchaser deliver a Prospectus containing
the information required by Items 507 and/or 508 of Regulation S-K under the Act
in connection with sales of New Notes acquired in exchange for such Notes shall
result in such New Notes being not "freely tradable" but (y) the requirement
that an Exchanging Dealer deliver a Prospectus in connection with sales of New
Notes acquired in the Registered Exchange Offer in exchange for Notes acquired
as a result of market-making activities or other trading activities shall not
result in such New Notes being not "freely tradable"), the following provisions
shall apply:
(a) The Issuers shall as promptly as practicable (but in no
event more than 30 days after so required or requested pursuant to this
Section 3), file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Notes or the New Notes, as
applicable, by the Holders from time to time in accordance with the
methods of distribution
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elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Act, provided, however, that with
respect to New Notes received by a Purchaser in exchange for Notes
constituting any portion of an unsold allotment, the Issuers may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of its obligations under this
Paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as,
and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(b) The Issuers shall use their best efforts to cause the
Shelf Registration Statement to be declared effective under the Act
within 90 days after so required or requested to file such Shelf
Registration Statement pursuant to this Section 3, and shall use its
best efforts to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders for a period of three years from the date the Shelf
Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Notes or New Notes, as
applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such
period being called the "Shelf Registration Period"). The Issuers shall
be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if they
voluntarily take any action that would result in Holders of securities
covered thereby not being able to offer and sell such securities during
that period, unless: (i) such action is required by applicable law; or
(ii) such action is taken by the Issuers in good faith and for valid
business reasons (not including avoidance of the Issuers' obligations
hereunder), including the acquisition or divestiture of assets, so long
as the Issuers promptly thereafter comply with the requirements of
Section 4(c) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall furnish to you, prior to the filing
thereof with the Commission, a copy of any Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein, and shall use their best efforts to
reflect in any Shelf
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Registration Statement, when so filed with the Commission, such
comments as you reasonably may propose.
(b) The Issuers shall ensure that: (i) any Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations
thereunder; (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, 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
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) (i) The Issuers shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by you or any such Holder, confirm such
advice in writing:
(A) when a Registration Statement and any
amendment thereto has been filed with the Commission
and when the Registration Statement or any
post-effective amendment thereto has become
effective; and
(B) of any request by the Commission for
amendments or supplements to the Registration
Statement or the Prospectus included therein or for
additional information.
(ii) The Issuers shall advise you and, in the case of
a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has
provided in writing to the Issuers a telephone or facsimile
number and address for notices, and, if requested by you or
any such Holder or Exchanging Dealer, confirm such advice in
writing:
(A) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(B) of the receipt by the Issuers of any
notification with respect to the suspension of the
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qualification of the securities included therein for
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(C) of the happening of any event that
requires the making of any changes in the
Registration Statement or the Prospectus so that, as
of such date, the statements therein are not
misleading and do not omit to state a material fact
required to be stated therein or necessary to make
the statements therein (in the case of the
Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been
made).
(d) The Issuers shall use their best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Issuers shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement,
any post-effective amendment thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Issuers consent to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of securities in connection with the offering and sale
of the securities covered by the Prospectus or any amendment or
supplement thereto.
(g) The Issuers shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits (including those incorporated by
reference).
(h) The Issuers shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging
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Dealer, without charge, such reasonable number of copies of the
Prospectus included in such Exchange Offer Registration Statement and
any amendment or supplement thereto as such Exchanging Dealer may
request for delivery by such Exchanging Dealer in connection with a
sale of New Notes received by it pursuant to the Registered Exchange
Offer, and the Issuers consent to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer, as
aforesaid.
(i) Prior to the Registered Exchange Offer (or any offering of
securities pursuant to any Registration Statement), the Issuers shall
register or qualify or cooperate with the Holders of securities
included therein and their respective counsel in connection with the
registration or qualification of such securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such
Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Registration Statement;
provided, however, that the Issuers will not be required to qualify
generally to do business in any jurisdiction where they are not then so
qualified or to take any action that would subject them to general
service of process or to taxation in any such jurisdiction where they
are not then so subject.
(j) The Issuers shall cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates
representing Notes to be sold pursuant to any Registration Statement
free of any restrictive legends and in denominations of $1,000 or an
integral multiple thereof and registered in such names as Holders may
request prior to sales of securities pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by Paragraph
(c)(ii)(3) above, the Issuers shall promptly prepare a post-effective
amendment to any Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that,
as thereafter delivered to purchasers of the securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Issuers shall provide a CUSIP number for the
Notes or New Notes, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Notes or
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New Notes, in a form eligible for deposit with The Depository Trust
Company.
(m) The Issuers shall use their best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Act.
(n) The Issuers shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Issuers may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Issuers such information regarding the Holder and the distribution of
such securities as the Issuers may from time to time reasonably require
for inclusion in such Registration Statement.
(p) The Issuers shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement such information as the Managing Underwriters
and Majority Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Issuers shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or facilitate the registration or the disposition of the Notes, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 hereof (or such other
provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 6 hereof from Holders of Notes to the
Issuers.
(r) In the case of any Shelf Registration Statement, the
Issuers shall: (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Issuers
and their
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subsidiaries; (ii) cause the Issuers' partners, officers, directors and
employees to supply all relevant information reasonably requested by
the Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Issuers, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily appropriately made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement; (iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of either of the Issuers (and, if necessary, any other
independent certified public accountants of any subsidiary of either of
the Issuers or of any business acquired by either of the Issuers for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders and
the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) hereof and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by either of the Issuers. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 4(r) shall be performed at:
(x) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (y) each closing under
underwriting or similar agreement as and to the extent required
thereunder.
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5. Registration Expenses. The Issuers shall, jointly and
severally, bear all expenses incurred in connection with the performance of
their obligations under Sections 2, 3 and 4 hereof and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of legal counsel designated by the Majority Holders to act as
counsel for the Holders in connection therewith, which counsel is reasonably
satisfactory to ICP-IV, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursement of legal counsel acting in connection therewith.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Issuers
agree, jointly and severally, to indemnify and hold each of you
harmless and, with respect to any Prospectus delivery as contemplated
in Section 4(h) hereof, each Exchanging Dealer, each of your and any
Exchanging Dealer's directors, officers, employees and agents and each
person who controls either of you or any Exchanging Dealer within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or
in any amendment thereof 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 (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Issuers will not be liable in any
case to the extent that any such loss, claim, damage or liability that
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Issuers by or on behalf of any such Holder specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability that the Issuers may otherwise have. The Issuers also agree,
jointly and severally, to indemnify or contribute to Losses of, as
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provided in Section 6(d), any selling Holders and any underwriters of
Notes registered under a Shelf Registration Statement, their respective
officers and directors and each person who controls any such
underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers provided in this Section 6(a)
and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 4(q)
hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless: (i)
the Issuers; (ii) each of their directors; (iii) each of their officers
who signs such Registration Statement; and (iv) each person who
controls either of ICP-IV or IPCC within the meaning of either the Act
or the Exchange Act to the same extent as the foregoing indemnity from
the Issuers to each such Holder, but only with reference to written
information relating to such Holder furnished to the Issuers by or on
behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability that any such Holder may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party: (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall
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have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel (and local counsel) if: (i) the named
parties to any such action, claim or proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party, and such indemnified party shall have been advised
in writing by counsel that a conflict of interest may exist, if such
counsel represents both such indemnified party and the indemnifying
party; (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party
may be subject such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and each indemnified party, on the other hand, from the Initial
Placement and the Registration Statement that resulted in such Losses;
provided, however, that in no case shall any Purchaser or any
subsequent Holder of any Note or New Note be responsible, in the
aggregate, for any amount in excess of the purchase discount or
commission applicable to such Note, or in the case of a New
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Note, applicable to the Note that was exchangeable into such New Note,
as set forth on the cover page of the Offering Memorandum, nor shall
any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement that
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements
or omissions that resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Issuers shall be
deemed to be equal to the sum of (x) the total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover
page of the Offering Memorandum and (y) the total amount of additional
interest that the Issuers were not required to pay as a result of
registering the securities covered by the Registration Statement that
resulted in such Losses. Benefits received by the Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as
set forth on the cover page of the Offering Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value
of receiving Notes or New Notes, as applicable, registered under the
Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration
Statement that resulted in such Losses. Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on
the one hand, or by the indemnified party, on the other hand. The
parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation that did not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph
(d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person
who controls either of the Issuers within the meaning of either the Act
or the Exchange Act, each officer of either of the Issuers who shall
have signed the Registration Statement and each director
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or partner of either of the Issuers shall have the same rights to
contribution as the Issuers, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Issuers or any of the officers, directors or controlling
persons referred to in this Section 6, and will survive the sale by a
Holder of securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as of
the date hereof, entered into, nor shall either or both of them, on or
after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of the Holders of at least a
majority of the then outstanding aggregate principal amount of Notes
(or, after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of New Notes), provided that, with respect to any
matter that directly or indirectly affects the rights of any Purchaser
hereunder, the Issuers shall obtain the written consent of each such
Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by the Majority Holders,
determined on the basis of securities being sold rather than registered
under such Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given
by such Holder to the Issuers in accordance with the
provisions of this Section 7(c), which address
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initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy in like
manner to NationsBanc Capital Markets, Inc.;
(ii) if to you, initially at the address set forth in
the Purchase Agreement, and copied to counsel as set forth
therein; and
(iii) if to the Issuers, initially at its address set
forth in the Purchase Agreement, and copied to counsel as set
forth therein.
All such notices and communications shall be deemed to have
been duly given when received.
Each of the parties hereto, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assign of each of the
parties hereto, including, without the need for an express assignment
or any consent by the Issuers thereto, subsequent Holders of Notes
and/or New Notes. The Issuers hereby agree to extend the benefits of
this Agreement to any Holder of Notes and/or New Notes and any such
Holder may specifically enforce the provisions of this Agreement as if
an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way
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impaired or affected thereby, it being intended that all of the rights
and privileges of each of the parties shall be enforceable to the
fullest extent permitted by law.
(i) Notes Held by the Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Notes or New Notes is required hereunder, Notes or New Notes, as
applicable, held by either of the Issuers or any of their Affiliates
(other than subsequent Holders of Notes or New Notes if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings
of such Notes or New Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
[signature page follows]
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Please confirm that the foregoing correctly sets forth the
agreement among the Issuers and you as of the date first written above.
Very truly yours,
INTERMEDIA CAPITAL PARTNERS IV, L.P. ("ICP-IV"),
a California limited partnership
By: InterMedia Capital Management IV, L.P.,
a California limited partnership,
as general partner of ICP-IV
By: /s/ Leo J. Hindery, Jr.
-------------------------------------
Leo J. Hindery, Jr.,
Managing General Partner
INTERMEDIA PARTNERS IV CAPITAL CORP.,
a Delaware corporation
By: /s/ Leo J. Hindery, Jr.
---------------------------------------------
Leo J. Hindery, Jr.,
President
Accepted in New York, New York
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Gary Wolfe
--------------------------------------
Gary Wolfe,
Vice President
TORONTO DOMINION SECURITIES (USA) INC.
By: /s/ Gordon Paris
--------------------------------------
Gordon Paris,
Managing Director
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ANNEX A
Each broker-dealer that receives New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a Prospectus in connection
with any resale of such New Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Act. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Notes received in exchange
for Notes where such New Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business 180 days after the Expiration Date, they will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
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ANNEX B
Each broker-dealer that receives New Notes for its own account in exchange for
Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a Prospectus in connection with any resale of such New Notes. See
"Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
Prospectus in connection with any resale of such New Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Notes where such Notes were acquired as a result of market-making activities or
other trading activities. Each of the Issuers has agreed that, starting on the
Expiration Date and ending on the close of business 180 days after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , , 199 , all dealers effecting transactions in the New Notes
may be required to deliver a Prospectus.
The Issuers will not receive any proceeds from any sale of New
Notes by broker-dealers. New Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related
to such prevailing market prices or negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such broker
dealer and/or the purchasers of any such New Notes. Any broker-dealer that
resells New Notes that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such New Notes may be deemed to be an "underwriter" within the meaning of the
Act and any profit of any such resale of New-Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a Prospectus, a
broker-dealer will not be deemed to admit that it is an Underwriter within the
meaning of the Act.
For a period of 180 days after the Expiration Date, the
Issuers will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Issuers have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holders of the Notes) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
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broker-dealers) against certain liabilities, including liabilities under the
Act.
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ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of New Notes.
If the undersigned is a broker-dealer that will receive New Notes for its own
account in exchange for Notes, it represents that the Notes to be exchanged for
New Notes were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a Prospectus in
connection with any resale of such New Notes and will indemnify, defend and hold
harmless InterMedia Capital Partners IV, L.P. and InterMedia Partners IV Capital
Corp. for the undersigned's failure to do so; however, by so acknowledging and
by delivering a Prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Act.
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