EXHIBIT 4.11
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10% SENIOR NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
Dated as of February 12, 1997
by and among
INTERNATIONAL CABLETEL INCORPORATED
and
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
CHASE SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 12, 1997 by and among International CableTel Incorporated, a
Delaware corporation (the "Company"), and Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner
& Smith Incorporated, as initial purchasers (the "Initial Purchasers"). The
Company proposes to issue and sell to the Initial Purchasers $400,000,000
aggregate principal amount of its 10% Senior Notes Due 2007 (the "Notes") (the
"Initial Placement"). As an inducement to the Initial Purchasers to enter into
the purchase agreement, dated as of February 7, 1997 (the "Purchase Agreement"),
and in satisfaction of a condition to the Initial Purchasers' obligations
thereunder, the Company agrees with the Initial Purchasers, (i) for the benefit
of the Initial Purchasers and (ii) for the benefit of the holders from time to
time of the Notes whose names appear in the register maintained by the Registrar
in accordance with the provisions of the Indenture (as defined in Section 1
hereof) (including the Initial Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
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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, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, 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 otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Commission Delay Period" has the meaning set forth in Section 2(a)
hereof.
"Consummate" means the occurrence of (i) the filing and effectiveness
under the Act of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Registered Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Registered Exchange Offer open for a period not less than the
minimum period required pursuant to Section 2(c)(ii) hereof, and
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(iii) the delivery by the Company to the Registrar under the Indenture of
Exchange Notes of a like aggregate principal amount to the Notes that were
tendered by Holders thereof pursuant to the Registered Exchange Offer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company identical in all
material respects to the Notes (except that paragraph 2 of, and the transfer
restrictions on the Notes will be modified or eliminated, as appropriate), to be
issued under the Indenture or the Exchange Notes Indenture.
"Exchange Notes Indenture" means an indenture between the Company and the
Exchange Notes Trustee, identical in all material respects with the Indenture
(except that paragraph 2 of, and the transfer restrictions on, the Notes will be
modified or eliminated, as appropriate).
"Exchange Notes Trustee" means a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the Exchange
Notes under the Exchange Notes Indenture.
"Exchange Offer Registration Period" means a period expiring upon the
earliest to occur of (i) the 1 year period following the Consummation of the
Registered Exchange Offer; (ii) the date on which, in the opinion of counsel to
the Company, all of the Transfer Restricted Securities then held by the Holders
may be sold by such Holders in the public United States securities markets in
the absence of a registration statement covering such sales and (iii) the date
on which there ceases to be outstanding any Transfer Restricted Securities.
"Exchange Offer Registration Statement" means a registration statement of
the Company 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) which is a broker-dealer, electing to exchange Transfer Restricted
Securities acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Notes.
"Final Offering Memorandum" has the meaning set forth in the Purchase
Agreement.
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"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Notes dated as of February
12, 1997, between the Company and The Chase Manhattan Bank, as trustee, as the
same may be amended 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.
"Notes" has the meaning set forth in the preamble hereto.
"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 Transfer Restricted Securities or the Exchange 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 Notes, a like principal
amount of the Exchange Notes.
"Registration Statement" means any Exchange Offer Registration Statement
or any Shelf Registration Statement, which is filed pursuant to the provisions
hereof, in each case, including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all exhibits
and 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 Company pursuant to the provisions of Section 3 hereof which covers some or
all of the Transfer Restricted Securities as applicable, on an appropriate form
under Rule 415
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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.
"Supplement Delay Period" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities or Exchange Notes of any
notice from the Company of the existence of any fact or event of the kind
described in Section 4(b)(2) hereof and ending on the date of receipt by such
Holder of an amended or supplemented Registration Statement or Prospectus, as
contemplated by Section 4(j) hereof, or the receipt by such Holder of written
notice from the Company (the "Advice") that the use of the Prospectus may be
resumed, and receipt of copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus.
"Transfer Restricted Securities" means each Note until (i) the date on
which such Note has been exchanged by a person other than a broker-dealer for an
Exchange Note in the Registered Exchange Offer, (ii) following the exchange by
an Exchanging Dealer in the Registered Exchange Offer of a Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) 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 (iv) the
date on which such Note is distributed to the public pursuant to Rule 144 under
the Act.
"Trustee" means the trustee with respect to the Notes 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 Exchange Notes by Exchanging
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Dealers; Private Exchange.
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(a) The Company shall prepare and, on or prior to 75 days following the
Closing Date, shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company shall use
its best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act on or prior to 120 days after the Closing Date; provided
that, if as a result of there being no federal governmental budget for any year
following the 1996 fiscal year, the Commission ceases to review registration
statements like the Registration Statements in the time within which the
Commission normally reviews such registration statements in the ordinary
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course (a "Commission Delay Period"), then such 120 day period during which the
Company must cause the Exchange Offer Registration Statement to become effective
shall be extended by the number of days of which the Commission Delay Period is
comprised. The Company shall use its best efforts to Consummate the Registered
Exchange Offer on or prior to 160 days after the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Transfer Restricted Securities for Exchange Notes (assuming that such
Holder is not an Affiliate of the Company within the meaning of the Act,
acquires the Exchange Notes in the ordinary course of such Holder's business and
has no arrangements with any person to participate in the distribution of the
Exchange Notes) to trade such Exchange 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 Company 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
and not more than 45 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary or an exchange agent
(which, in either case, may be the Trustee) for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Transfer Restricted Securities tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Transfer Restricted
Securities so accepted for exchange; and
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(iii) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Transfer
Restricted Securities, Exchange Notes of a like principal amount to the
Transfer Restricted Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company 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 Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange Offer in exchange
for Transfer Restricted Securities acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Company
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 Registered Exchange Offer, 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 in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer;
and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective (subject to the existence of a Supplement
Delay Period) under the Act during the Exchange Offer Registration Period for
delivery by Exchanging Dealers in connection with sales of Exchange Notes
received pursuant to the Registered Exchange Offer, as contemplated by
Section 4 (g) below.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Transfer Restricted Securities constituting any portion of an unsold
allotment of Notes, at the written request of such Initial Purchaser, the
Company shall issue and deliver to such Initial Purchaser or the party
purchasing Exchange Notes registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in exchange for
such Transfer Restricted Securities, a like principal amount of Exchange Notes.
Exchange Notes issued in exchange for Transfer Restricted Securities
constituting any portion of an unsold allotment of Notes which are not
registered under a Shelf Registration Statement as contemplated by Section 3
hereof shall bear a legend as to restrictions on transfer. The Company shall
seek to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes as for Exchange Notes issued pursuant to the Registered Exchange
Offer.
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3. Shelf Registration. If, (i) the Company is not required to file the
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Exchange Offer Registration Statement or permitted to Consummate the Registered
Exchange Offer because the Registered Exchange Offer is not permitted by
applicable law or Commission policy or (ii) any Holder of Transfer Restricted
Securities notifies the Company in writing within 10 business days of the filing
and effectiveness under the Act of the Exchange Offer Registration Statement (A)
it is prohibited by law or Commission policy from participating in the
Registered Exchange Offer or (B) that it may not resell the Exchange Notes
acquired by it in the Registered Exchange Offer to the public without delivering
a prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales or (C) that it is a
broker-dealer and owns Notes acquired directly from the Company or an Affiliate
(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 Exchange Notes acquired in exchange for such Notes shall result in
such Exchange Notes being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
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 Exchange Notes being not "freely tradeable"), the following
provisions shall apply:
(a) The Company shall as promptly as practicable, file with the Commission
and thereafter shall use its best efforts to cause to be declared effective
under the Act on or prior to 120 days (plus any additional days allowed as a
result of a Commission Delay Period) after the date of original issuance of the
Notes, a Shelf Registration Statement relating to the offer and sale of the
Transfer Restricted Securities by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement; provided, however, that, with respect to Exchange
Notes received by an Initial Purchaser in exchange for Transfer Restricted
Securities constituting any portion of an unsold allotment of Notes, the Company
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 Company 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
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statement is declared effective by the Commission (or until one year after such
effective date if such Shelf Registration Statement is filed at the request of
an Initial Purchaser) or such shorter period that will terminate when (i) all
the Transfer Restricted Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement, (ii) the date on
which, in the opinion of counsel to the Company, all of the Transfer Restricted
Securities then held by the Holders may be sold by such Holders in the public
United States securities markets in the absence of a registration statement
covering such sales or (iii) the date on which there ceases to be outstanding
any Transfer Restricted Securities (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would result in Holders
of Transfer Restricted Securities covered thereby not being able to offer and
sell such securities during that period, unless (i) such action is required by
applicable law, (ii) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of Section 4(j)
hereof, if applicable or (iii) such action is taken because of any fact or
circumstance giving rise to a Supplement Delay Period.
4. Registration Procedures. In connection with any Shelf Registration
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Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company 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, in the light of the circumstances under which
they were made, not misleading.
(b) (1) The Company shall advise the Initial Purchasers and, in the case
of a Shelf Registration Statement, the Holders of Transfer Restricted
Securities covered thereby, and, if requested by the Initial Purchasers or
any such Holder, confirm such advice in writing when a Registration Statement
and any amendment thereto has been filed with the Commission and when
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the Registration Statement or any post-effective amendment thereto has become
effective.
(2) The Company shall advise the Initial Purchasers and, in the case of
a Shelf Registration Statement, the Holders of Transfer Restricted Securities
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer which has provided in writing to the Company
a telephone or facsimile number and address for notices, and, if requested by
the Initial Purchasers or any such Holder or Exchanging Dealer, confirm such
advice in writing:
(i) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information;
(ii) of the initiation by the Commission of proceedings relating to
a stop order suspending the effectiveness of the Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the existence of any fact and the happening of any event
(including, without limitation, pending negotiations relating to, or the
consummation of, a transaction or the occurrence of any event which would
require additional disclosure of material non-public information by the
Company in the Shelf Registration Statement as to which the Company has a
bona fide business purpose for preserving confidential or which renders
the Company unable to comply with Commission requirements) that, in the
opinion of the Company, makes untrue any statement of a material fact made
in its Shelf Registration Statement, the Prospectus or any amendment or
supplement thereto or any document incorporated by reference therein or
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.
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Such advice may be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made.
(c) The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder included within the coverage of any Shelf Registration Statement who
so requests in writing and who has provided to the Company an address for
notices, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and, if the Holder so requests in writing, all exhibits
and schedules (including those incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities covered by any Shelf
Registration Statement and who has provided to the Company an address for
notices, 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
subject to any notice by the Company in accordance with Section 5(b) hereof,
the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders for the purposes of
offering and resale of the Transfer Restricted Securities covered by the
Prospectus in accordance with the applicable regulations promulgated under
the Act.
(f) The Company shall furnish to each Exchanging Dealer which so requests
in writing, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements, and, if the Exchanging Dealer so requests in writing,
any documents incorporated by reference therein and all exhibits and
schedules (including those incorporated by reference).
(g) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of
Exchange Notes received by it pursuant to the Registered Exchange Offer; and
the Company consents to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer for the purposes
contemplated by the Act or the applicable regulations promulgated under the
Act.
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(h) Prior to the Registered Exchange Offer or any offering of Transfer
Restricted Securities pursuant to any Registration Statement, the Company
shall register or qualify or cooperate with the Holders of Transfer
Restricted Securities named therein and their respective counsel in
connection with the registration or qualification of such Transfer Restricted
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions of the United States as any such Holders reasonably request in
writing not later than the date that is five business days prior to the date
upon which this Agreement specifies that the Registration Statement shall
become effective; provided, however, that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so
subject.
(i) The Company shall endeavor to cooperate with the Holders of Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in writing
at least two Business Days prior to sales of securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph (b)(2)(v)
hereof, the Company 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 Transfer Restricted Securities covered
thereby, 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; provided that, in the event of a material business transaction
(including, without limitation, pending negotiations relating to such a
transaction) which would, in the opinion of counsel to the Company, require
disclosure by the Company in the Shelf Registration Statement of material
non-public information which the Company has a bona fide business purpose for
not disclosing, then for so long as such circumstances exist, the Company
shall not be required to prepare and file a supplement or post-effective
amendment hereunder.
(k) Not later than the effective date of any such Registration Statement
hereunder, the Company shall cause to be provided a CUSIP number for the
Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for
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such Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available to
its security holders in a regular filing on Form 10-Q or 10-K an earnings
statement satisfying the provisions of Rule 158 (which need not be audited)
for the twelve-month period commencing after effectiveness of the Shelf
Registration Statement.
(m) The Company shall cause the Indenture or the Exchange Notes Indenture,
as the case may be, to be qualified under the Trust Indenture Act in a timely
manner.
(n) The Company may require each Holder of Transfer Restricted Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company within 20 Business Days after written request for such information
has been made by the Company, such information regarding the Holder and the
distribution of such securities as the Company may from time to time
reasonably require for inclusion in such Registration Statement and such
other information as may be necessary or advisable in the reasonable opinion
of the Company and its counsel, in connection with such Shelf Registration
Statement. No Holder of Transfer Restricted Securities shall be entitled to
use the Prospectus unless and until such Holder shall have furnished the
information required by this Section 4(n) and all such information required
to be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
(o) The Company 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; provided however, that the Company shall not be required to take
any action pursuant to this Section 4(o) that would, in the opinion of
counsel for the Company, violate applicable law or to include information the
disclosure of which at the time would have an adverse effect on the business
or operations of the Company and/or its subsidiaries, as determined in good
faith by the Company.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements (including underwriting agreements) and take all
other reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities, and in
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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 7 (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 7 from
Holders of Notes to the Company.
(q) In the case of any Shelf Registration Statement, the Company shall (i)
make reasonably available for inspection by representatives of the Holders of
Transfer Restricted Securities to be registered thereunder, the Managing
Underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such Managing Underwriter, at the office where normally kept
during normal business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any Managing Underwriter,
attorney, accountant or other agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
however, that such persons shall first agree in writing with the Company that
any information that is designated in writing by the Company, in good faith,
as confidential at the time of delivery of such information shall be kept
confidential by such person, 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; (ii) make such representations
and warranties to the Holders of Transfer Restricted Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement; (iii) obtain opinions of counsel to the Company 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; (iv) obtain "cold comfort" letters (or, in the case
of any person that does not satisfy the conditions for receipt of a "cold
comfort" letter specified in Statement on Auditing Standards No. 72, an
"agreed-upon procedures letter") and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements and
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financial data are, or are required to be, included in the Registration
Statement), addressed where reasonably practicable to each selling Holder of
Transfer Restricted 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 (v) 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(j) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The foregoing actions set forth in
clauses (ii), (iii), (iv) and (v) of this Section 4(q) shall, if reasonably
requested by the Majority Holder or the Majority Underwriters, be performed
at (A) the effectiveness of such Registration Statement and each post-
effective amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) The Company may offer securities of the Company other than the Notes
or the Exchange Notes under the Shelf Registration Statement, except where
such offer would conflict with the terms of the Purchase Agreement.
5. Holders' Agreements. Each Holder of Transfer Restricted Securities and
-------------------
Exchange Notes, by the acquisition of such Transfer Restricted Securities or
Exchange Notes, as the case may be, agrees:
(a) To furnish the information required to be furnished pursuant to
Section 4(n) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a Supplement
Delay Period, it will keep the fact of such notice confidential, forthwith
discontinue disposition of its Transfer Restricted Securities or Exchange
Notes, as the case may be, pursuant to the Registration Statement, and will
not deliver any Prospectus forming a part thereof until receipt of the
amended or supplemented Registration Statement or Prospectus, as applicable,
as contemplated by Section 4(j) hereof, or until receipt of the Advice. If a
Supplement Delay Period should occur, the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, shall be extended by the
number of days of which the Supplement Delay Period is comprised; provided
that the Shelf Registration Period shall not be extended if the Company has
received an opinion of counsel (which counsel, if different from counsel to
the Company referred to in Section 6(a) and (b) of the Purchase Agreement,
shall be reasonably satisfactory to the Majority Holders of the Transfer
Restricted Securities named in the Shelf Registration Period) to the effect
that the Transfer Restricted Securities
15
can be freely tradeable without the continued effectiveness of the Shelf
Registration Statement.
(c) If so directed by the Company in a notice of the commencement of a
Supplement Delay Period, each Holder of Transfer Restricted Securities or
Exchange Notes, as the case may be, 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 the Transfer Restricted
Securities or Exchange Notes, as the case may be.
(d) Sales of such Transfer Restricted Securities pursuant to a
Registration Statement shall only be made in the manner set forth in such
currently effective Registration Statement.
6. Registration Expenses. The Company shall bear all expenses incurred in
---------------------
connection with the performance of its 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 one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith. Notwithstanding the
foregoing or anything in this Agreement to the contrary, each Holder shall pay
all underwriting discounts and commission of any underwriters with respect to
any Transfer Restricted Securities sold by it.
7. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Company agrees to indemnify and hold harmless each
Holder of Transfer Restricted Securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either Section 15 of the Act or Section 20 of 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 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
16
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any case to the
extent that any such loss, claim, damage or liability 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 Company by or on behalf of any such Holder or by
the Managing Underwriters specifically for inclusion therein and (ii) the
Company will not be liable to any indemnified party under this indemnity
agreement with respect to the Registration Statement or Prospectus to the extent
that any such loss, claim, damage or liability of such indemnified party results
solely from an untrue statement of a material fact contained in, or the omission
of a material fact from, the Registration Statement or Prospectus which untrue
statement or omission was corrected in an amended or supplemented Registration
Statement or Prospectus, if the person alleging such loss, claim, damage or
liability was not sent or given, at or prior to the written confirmation of such
sale, a copy of the amended or supplemented Registration Statement or Prospectus
if the Company had previously furnished copies thereof to such indemnified party
and if delivery of a prospectus is required by the Act and was not so made.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d), any underwriters of Notes registered under a Shelf
Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchaser and the selling Holders 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 Transfer Restricted Securities or Exchange Notes
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
Company, (ii) each of its directors, (iii) each of its officers who signs such
Registration Statement and (iv) each person who controls the Company within the
meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company 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 which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or
notice of the commencement of any action, such
17
indemnified party will, 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 reasonably
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 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 use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (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 which 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
18
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 in such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Registration
Statement which resulted in such Losses; provided, however, that in no case
shall any Initial Purchaser or any subsequent Holder of any Note or Exchange
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 an Exchange
Note, applicable to the Note which was exchangeable into such Exchange Note, as
set forth on the cover page of the Final 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 which 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 which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company 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 Final Offering
Memorandum and (y) the total amount of additional interest which the Company was
not required to pay as a result of registering the securities covered by the
Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Notes or Exchange 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 which 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 agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does 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
19
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 the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, 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
Company or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities or Exchange Notes.
8. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it, 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 Company has 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 Registered Exchange Offer in
accordance with Section 2 hereof, of Exchange Notes); provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial 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 Notes
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:
20
(1) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 7(c), which
address initially is, with respect to each Holder, the address of such
Holder maintained by the registrar under the Indenture or the Exchange
Note Indenture, as the case may be, with a copy in like manner to
Donaldson, Lufkin & Jenrette Securities Corporation;
(2) if to the Initial Purchasers, initially at the respective addresses
set forth in the Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company by notice to the other 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 assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Notes and/or Exchange Notes. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of Notes
and/or Exchange 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 (without reference to the
conflict of law rules thereof).
(h) Severability. In the event that any one of 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 impaired or affected
21
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval of
------------------------------
Holders of a specified percentage of principal amount of Notes or Exchange Notes
is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
[signature page follows]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTERNATIONAL CABLETEL INCORPORATED
By: /s/ Richard J. Lubasch
------------------------
Name: Richard J. Lubasch
Title: Senior Vice President and
General Counsel
DONALDSON LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: DONALDSON LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Anthony S. Belinkoff
---------------------------
Name: Anthony S. Belinkoff
Title: Managing Director
23
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange 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 Securities 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
Exchange Notes received in exchange for Notes where such Exchange Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration
Date (as defined herein) and ending on the close of business on the 180th day
following the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
24
ANNEX B
Each broker-dealer that receives Exchange 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 Exchange Notes.
See "Plan of Distribution."
25
ANNEX C
PLAN OF DISTRIBUTION
--------------------
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting
on the Expiration Date and ending on the close of business on the 180th day
following 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.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange 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 Exchange Notes or by 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 at negotiated prices. Any such
resale may be made directly to purchaser 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 Exchange Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
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 Securities Act.
For a period of 180 days after the Expiration Date, the Company 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 Company has agreed to pay all expenses
incident to the
26
Registered 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 broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
[Add information required by Regulation S-K Items 507 and/or 508.]
27
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 Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
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 Securities Act.
28