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EXHIBIT 10.34
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of February 14, 2001 among Qwest Communications International Inc., a Delaware
corporation (the "Guarantor"), Qwest Capital Funding, Inc., a Colorado
corporation (the "Company"), and the Initial Purchasers (as hereinafter
defined). This Agreement is made pursuant to the Purchase Agreement dated
February 7, 2001 (the "Purchase Agreement"), among the Guarantor, the Company,
as issuer of the 7.25% Notes due February 15, 2011 and the 7.75% Notes due
February 15, 2031 (the "Notes"), and the Initial Purchasers, which provides for,
among other things, the sale by the Company to the Initial Purchasers of the
aggregate principal amount of Notes specified therein. The Notes will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by the Guarantor (the "Guarantees", and together with the Notes, the
"Securities"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Guarantor and the Company have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement. In consideration of
the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(s)
hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Guarantees" shall mean the Guarantor's unconditional
guarantee of principal, premium, if any, and interest of the Exchange Notes
containing terms identical in all material respects to the Guarantees.
"Exchange Notes" shall mean the 7.25% Notes due February 15, 2011 and
the 7.75% Notes due February 15, 2031 issued by the Company under the Indenture
containing terms identical in all material respects to the Notes (except that
(i) interest thereon shall accrue from the last date on which interest was paid
or duly provided for on the Notes or, if no such interest has been paid, from
the date of their original issue, (ii) they will not contain terms with respect
to transfer restrictions under the Securities Act, (iii) they will not provide
for any Special Interest Premium thereon and (iv) they will be entitled to the
benefit of the Exchange Guarantees) to be offered to Holders of Notes in
exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Securities for a like amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
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"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Guarantees" shall have the meaning set forth in the preamble to this
Agreement.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture, dated as of June 29, 1998,
between the Company, as issuer, the Guarantor (as successor to US WEST, Inc.)
and Bank One Trust Company, National Association, as trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Banc of America Securities LLC, Chase
Securities Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co.,
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., ABN AMRO Incorporated, Banc One Capital Markets,
Inc., Commerzbank Capital Markets Corp., First Union Securities, Inc., Fleet
Securities Inc., Mellon Financial Markets, LLC, RBC Dominion Securities
Corporation, U.S. Bancorp Piper Jaffray Inc., Utendahl Capital Partners, L.P.,
Wells Fargo Brokerage Services, LLC, and The Williams Capital Group, L.P.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean February 14, 2001, the initial date of delivery
of the Notes from the Company to the Initial Purchasers.
"Issuer" shall mean the Company as defined in the preamble hereto.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes and Exchange Notes.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when any of the
following occurs: (i) a Registration Statement with respect to such Securities
for the exchange or resale thereof shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or are eligible to be sold without restriction as
contemplated by Rule 144(k), (iii) such Securities shall have ceased to be
outstanding or (iv) such Securities shall have been exchanged for Exchange Notes
together with the Exchange Guarantees upon consummation of the Exchange Offer
and are thereafter freely tradable by the Holder thereof (other than an
Affiliate of the Company or the Guarantor).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantor with this
Agreement, including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees, including,
if applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of one counsel for
all underwriters and Holders as a group in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities) and
compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
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distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and the Guarantor and of the independent certified public accountants of
the Company and the Guarantor and its subsidiaries, including the expenses of
any "cold comfort" letters required by or incident to the performance of and
compliance with this Agreement, (vi) the reasonable fees and expenses of the
Trustee and its counsel and any exchange agent or custodian, and (vii) the
reasonable fees and expenses of any special experts retained by the Company and
the Guarantor in connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantor which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Securities (except Registrable Securities which
the Holders have elected not to include in such Shelf Registration Statement or
the Holders of which have not complied with their obligations under the
penultimate paragraph of Section 3 hereof or under the first paragraph of
Section 2(b) hereof) on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, and 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 documents incorporated by reference therein.
"Special Interest Premium" shall have the meaning set forth in Section
2(e) hereof.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company and
the Guarantor shall, for the benefit of the Holders, at the Company's cost, use
its reasonable best efforts to (i) file with the SEC within 150 calendar days
after the Issue Date an Exchange Offer Registration Statement on an appropriate
form under the Securities Act relating to the Exchange Offer, (ii) cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act by the SEC not later than the date which is 210 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 240 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for a like principal amount of
Exchange Notes together with the Exchange Guarantees (provided that such Holder
(i) is not an Affiliate of the Company or the Guarantor, (ii) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company, (iii) acquires the Exchange Securities in the ordinary course of such
Holder's business and (iv) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
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receipt without any limitations or restrictions under the Securities Act and
under state securities or blue sky laws. In connection with the Exchange Offer,
the Company and the Guarantor 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 Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
"Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer
with respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Securities at any
time prior to the close of business, New York City time, on the last Business
Day of the Exchange Period, by sending to the institution specified in the
notice to Holders, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is withdrawing his
election to have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered by
such Holder in the Exchange Offer will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement (except in the case
of the Initial Purchasers and Participating Broker-Dealers as provided herein);
and
(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer. As soon as practicable after the close of the Exchange
Offer, the Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof
duly tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement and
letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Securities or portions thereof so accepted for exchange by the
Company and the Guarantor; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder,
and the Guarantor will execute the Exchange Guarantees. Interest on each
Exchange Note issued pursuant to the Exchange Offer will accrue from the last
date on which interest was paid or duly provided for on the Note surrendered in
exchange therefor or, if no interest has been paid on such Note, from the Issue
Date. To the extent not prohibited by any law or applicable interpretation of
the staff of the SEC, the Company and the Guarantor shall use reasonable best
efforts to complete the Exchange Offer as provided above, and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions other than the conditions referred to in
Section 2(b)(i) and (ii) below and those conditions that are customary in
similar exchange offers. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Securities in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including, in the case of any Holder, representations that (i) it is
not an Affiliate of the Company or the Guarantor, (ii) it is not a broker-dealer
tendering Registrable Securities acquired directly from the Company, (iii) the
Exchange Securities to be received by it are being acquired in the ordinary
course of its business and (iv) at the time of the Exchange Offer, it has no
arrangements or understandings with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities. The Company and the Guarantor shall inform the Initial Purchasers,
after consultation with the Trustee, of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders in order to facilitate the tender of Registrable
Securities in the Exchange Offer. Upon consummation of the Exchange Offer in
accordance with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Exchange Securities
held by Participating Broker-Dealers, and the Company and the Guarantor shall
have no further obligation to register the Registrable Securities held by any
Holder pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law or in currently
prevailing interpretations thereof by the staff of the SEC, the Company or the
Guarantor is not permitted to effect the Exchange Offer as contemplated by
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Section 2(a) hereof, (ii) the Exchange Offer is not consummated within 240 days
after the Issue Date or (iii) upon the request of any Initial Purchaser with
respect to any Registrable Securities held by it, if such Initial Purchaser is
not permitted, in the reasonable opinion of Brown & Wood LLP, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the Securities Act and applicable blue sky
or state securities laws (other than due solely to the status of such Initial
Purchaser as an Affiliate of the Company or the Guarantor or as a Participating
Broker-Dealer)(any of the events specified in (i), (ii) or (iii) being a "Shelf
Registration Event", and the date of occurrence thereof, the "Shelf Registration
Event Date"), then in addition to or in lieu of conducting the Exchange Offer
contemplated by Section 2(a), as the case may be, the Company and the Guarantor
shall promptly notify the Holders in writing thereof and shall, at its cost,
file as promptly as practicable after such Shelf Registration Event Date and, in
any event, within 90 days after such Shelf Registration Event Date, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities (other than Registrable Securities owned by Holders who
have elected not to include such Registrable Securities in such Shelf
Registration Statement or who have not complied with their obligations under the
penultimate paragraph of Section 3 hereof or under this paragraph, and shall use
its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the SEC as soon as practicable. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company and the Guarantor in
writing, within 15 days after receipt of a request therefor, such information as
the Company and the Guarantor may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected agrees
to furnish to the Company and the Guarantor all information with respect to such
Holder necessary to make the information previously furnished to the Company and
the Guarantor by such Holder not materially misleading.
The Company and the Guarantor agree to use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective and the Prospectus
usable for resales for the earlier of: (a) the Rule 144(k) Period or (b) such
time as all of the securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Securities (the "Effectiveness Period"). The Company and the
Guarantor shall not permit any securities other than (i) the Company's and the
Guarantor's issued and outstanding securities possessing incidental registration
rights and (ii) Registrable Securities, to be included in the Shelf
Registration. The Company and the Guarantor will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder of
Registrable Securities covered thereby a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration has become effective and take any other
action required to permit unrestricted resales of the Registrable Securities.
The Company and the Guarantor further agree, if necessary, to supplement or
amend the Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company and the
Guarantor for such Shelf Registration Statement or by the Securities Act or by
any other rules and regulations thereunder for shelf registrations, and the
Company and the Guarantor agree to furnish to the Holders of Registrable
Securities covered by such Shelf Registration Statement copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company and the Guarantor shall pay all Registration Expenses
in connection with any Registration Statement filed pursuant to Section 2(a)
and/or 2(b) hereof and will reimburse the Initial Purchasers for the reasonable
fees and disbursements of Brown & Wood LLP incurred in connection with the
Exchange Offer. Except as provided herein, each Holder shall pay all expenses of
its counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that if, after it has
been declared effective, the
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offering of Registrable Securities pursuant to such Exchange Offer Registration
Statement or Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Offer Registration Statement or Shelf
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. The Company and the
Guarantor will be deemed not to have used their reasonable best efforts to cause
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, to become, or to remain, effective during the requisite
period if they voluntarily take any action that would result in any such
Registration Statement not being declared effective or that would result in the
Holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period, unless such
action is required by applicable law.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the SEC
on or prior to the 150th day after the Issue Date, then, commencing on the 151st
day after the Issue Date, a special interest premium (the "Special Interest
Premium") shall accrue on the principal amount of the Notes at a rate of 0.25%
per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 210th day after the Issue Date, then,
commencing on the 211st day after the Issue Date, a Special Interest Premium
shall accrue on the principal amount of the Notes at a rate of 0.25% per annum;
(iii) (A) the Company has not exchanged Exchange Notes for all Notes
validly tendered, or the Guarantor has not executed the Exchange Guarantees in
respect of the Exchange Notes, in accordance with the terms of the Exchange
Offer on or prior to the 240th day after the Issue Date or (B) if the Shelf
Registration Statement is required to be filed pursuant to Section 2(b) but is
not declared effective by the SEC on or prior to the 240th day after the Issue
Date, then, commencing on the 241st day after the Issue Date, a Special Interest
Premium shall accrue on the principal amount of the Notes at the rate of 0.25%
per annum; or
(iv) the Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective or the Prospectus
ceases to be usable for resales (A) at any time prior to the expiration of the
Effectiveness Period or (B) if related to corporate developments, public filings
or similar events or to correct a material misstatement or omission in the
Prospectus, for more than 60 days (whether or not consecutive) in any
twelve-month period, then a Special Interest Premium shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum commencing on the day
(in the case of (A) above), or the 61st day after (in the case of (B) above),
such Shelf Registration Statement ceases to be effective or the Prospectus
ceases to be usable for resales; provided, however, that the aggregate amount of
the Special Interest Premium in respect of the Notes may not exceed 0.25% per
annum; provided, further, however, that (1) upon the filing of the Exchange
Offer Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) above), (3) upon the exchange of Exchange Notes for all Notes
validly tendered and execution of the Exchange Guarantees (in the case of clause
(iii)(A) above) or upon the effectiveness of the Shelf Registration Statement
(in the case of clause (iii) (B) above) or (4) the earlier of (y) such time as
the Shelf Registration Statement which had ceased to remain effective or the
Prospectus which had ceased to be usable for resales again becomes effective and
usable for resales and (z) the expiration of the Effectiveness Period (in the
case of clause (iv) above), the Special Interest Premium on the principal amount
of the Notes as a result of such clause (or the relevant subclause thereof)
shall cease to accrue; provided, further, however, that if the Exchange Offer
Registration Statement is not declared effective by the SEC on or prior to the
240th day after the Issue Date and the Company and the Guarantor shall request
Holders to provide the information required by the SEC for inclusion in the
Shelf Registration Statement, the Notes owned by Holders who do not provide such
information when required pursuant to Section 2(b) will not be entitled to any
Special Interest Premium for any day after the 240th day after the Issue Date.
Any Special Interest Premium due pursuant to Section 2(e)(i), (ii),
(iii) or (iv) above will be payable in cash on the next succeeding February 15
or August 15, as the case may be, to Holders on the relevant record dates for
the payment of interest pursuant to the Indenture.
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(f) Specific Enforcement. Without limiting the remedies available to the
Holders, the Company and the Guarantor acknowledge that any failure by the
Company and the Guarantor to comply with its respective obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the Company's and the Guarantor's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the Company
and the Guarantor with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company and the Guarantor shall use their
reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and
2(b) hereof within the relevant time period specified in
Section 2 hereof on the appropriate form under the Securities
Act, which form shall (i) be selected by the Company and the
Guarantor, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the
selling Holders thereof and, in the case of an Exchange Offer,
be available for the exchange of Registrable Securities, and
(iii) comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; the
Company and the Guarantor shall use their reasonable best
efforts to cause such Registration Statement to become
effective and remain effective (and, in the case of a Shelf
Registration Statement, the Prospectus to be usable for
resales) in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section 2(b),
or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the
Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed; and the Company and
the Guarantor shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect
of which the Holders must be afforded an opportunity to review
prior to the filing of such document if the Majority Holders
of the Registrable Securities, depending solely upon which
Holders must be afforded the opportunity of such review, or
such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall reasonably
object in a timely manner;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement effective
for the Effectiveness Period or the Applicable Period, as the
case may be, and cause each Prospectus to be supplemented, if
so determined by the Company and the Guarantor or requested by
the SEC, by any required prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act
and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may
be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this
Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to
the Registrable Securities is being filed and advising such
Holder that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority
Holders of the Registrable Securities, (ii) furnish to each
Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an
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underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement
thereto, and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities
and (iii) consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders
of Registrable Securities included in the Shelf Registration
Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify
the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the
time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall
reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder
and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company and the Guarantor
shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be
subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so
subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Company and the
Guarantor have received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(s) hereof, are
seeking to sell Exchange Securities and are required to
deliver Prospectuses, promptly notify each Holder of
Registrable Securities, or such Participating Broker-Dealers,
as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in
writing (i) when a Registration Statement has become effective
and when any post-effective amendments thereto become
effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the qualification
of the Registrable Securities or the Exchange Securities to be
offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the
initiation of any proceedings for that purpose, (iv) in the
case of a Shelf Registration, if, between the effective date
of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations
and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar
agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of
any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such
Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement
or Prospectus to 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, as
well as any other corporate developments, public filings with
the SEC or similar events causing such Registration Statement
not to be effective or the Prospectus not to be useable for
resales and (vi) of the reasonable determination of the
Company and the Guarantor that a post-effective amendment to
the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest
possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage
of such Shelf Registration Statement, without charge, at least
one conformed
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copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any
restrictive legends (except any customary legend borne by
securities held through The Depository Trust Company or any
similar depository) and in such denominations (consistent with
the provisions of the Indenture and the officers' certificate
establishing the forms and the terms of the Notes pursuant to
the Indenture) and registered in such names as the selling
Holders or the underwriters may reasonably request at least
two Business Days prior to the closing of any sale of
Registrable Securities pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to
a 60-day grace period within any twelve-month period) or
3(e)(vi) hereof, prepare a supplement or post-effective
amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities,
such Prospectus will not include any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company
shall notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event,
and each Holder hereby agrees to suspend use of the Prospectus
until the Company and the Guarantor have amended or
supplemented the Prospectus to correct such misstatement or
omission;
(j) obtain a CUSIP number for the Exchange Securities or the
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the
Trustee with certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible
for deposit with the Depositary;
(k) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection
with the registration of the Exchange Securities or
Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute,
and cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are
customary in underwritten offerings and take all such other
appropriate actions in connection therewith as are reasonably
requested by the Holders of at least 25% in aggregate
principal amount of the Registrable Securities in order to
expedite or facilitate the registration or the disposition of
the Registrable Securities;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by
(x) an Initial Purchaser, in the case where such Initial
Purchaser holds Notes acquired by it as part of its initial
placement and Holders of at least 25% in aggregate principal
amount of the Registrable Securities covered thereby: (i) make
such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with
respect to the business of the Company, the Guarantor, the
subsidiaries of the Guarantor, and if applicable, Quest
Communications International Inc. as then conducted and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same
if and when requested; (ii) obtain opinions of counsel to the
Company and the Guarantor and updates thereof (which may be in
the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in amount of the Registrable
Securities being
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sold, addressed to each selling Holder and the underwriters
(if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters (it being
agreed that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters
from the independent certified public accountants of the
Company, the Guarantor, and the subsidiaries of the Guarantor
(and, if necessary, any other independent certified public
accountants of any business acquired or to be acquired by the
Guarantor for which financial statements and financial data
are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters
as reasonably requested by such underwriters in accordance
with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable
than those set forth in Section 4 hereof (or such other
provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing
underwriters) customary for such agreements with respect to
all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling
Holders); and in the case of an underwritten registration, the
above requirements shall be satisfied at each closing under
the related underwriting agreement or as and to the extent
required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section
2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of Registrable
Securities or Participating Broker-Dealer, as applicable, who
certifies to the Company and the Guarantor that it has a
current intention to sell Registrable Securities pursuant to
the Shelf Registration, any underwriter participating in any
such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such
selling Holder, Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during the Company's and the
Guarantor's normal business hours, all financial and other
records, pertinent organizational and operational documents
and properties of the Company, the Guarantor and the
Guarantor's subsidiaries (collectively, the "Records") as
shall be reasonably necessary to enable them to conduct due
diligence activities, and cause the officers, trustees and
employees of the Company, the Guarantor and the Guarantor's
subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with
such Registration Statement; records and information which the
Company and the Guarantor determine, in good faith, to be
confidential and any Records and information which it notifies
the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or
information is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii)
the release of such Records or information is ordered pursuant
to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) such Records or information
previously has been made generally available to the public;
each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree in
writing that Records and information obtained by it as a
result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market
transactions in the securities of the Company and the
Guarantor unless and until such is made generally available to
the public through no fault of an Inspector or a selling
Holder; and each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to
further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court
of competent jurisdiction, or in connection with
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any action, suit or proceeding, give notice to the Company and
the Guarantor and allow the Company and the Guarantor at their
expense to undertake appropriate action to prevent disclosure
of the Records and information deemed confidential;
(o) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be
applicable and make generally available to its securityholders
earning statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 50
days after the end of any 12-month period (or 105 days after
the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company and
the Guarantor after the effective date of a Registration
Statement, which statements shall cover said 12-month periods,
provided that the obligations under this paragraph (o) shall
be satisfied by the timely filing of quarterly and annual
reports on Forms 10-Q and 10-K under the Exchange Act;
(p) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by Holders to the Company and
the Guarantor (or to such other Person as directed by the
Company and the Guarantor), in exchange for the Exchange
Securities, the Company shall mark, or cause to be marked, on
such Notes delivered by such Holders that such Notes are being
cancelled in exchange for the Exchange Securities; it being
understood that in no event shall such Notes be marked as paid
or otherwise satisfied;
(q) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any
filings required to be made with the NASD;
(r) take all other steps necessary to effect the registration
of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(s) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," which
section shall be reasonably acceptable to the Initial
Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC
with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for
its own account as a result of market-making activities or
other trading activities (a "Participating Broker-Dealer") and
that will be the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities to be received
by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the
reasonable judgment of the Initial Purchasers or such other
representative, represent the prevailing views of the staff of
the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company
and the Guarantor the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any
preliminary Prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably
request (the Company and the Guarantor hereby consent to the
use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto
by any Person subject to the prospectus delivery requirements
of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment
or supplement thereto), (iii) use its reasonable best efforts
to keep the Exchange Offer Registration Statement effective
and to
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amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must
comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the
Exchange Securities; provided, however, that such period shall
not be required to exceed 240 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof)
(the "Applicable Period"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company and the Guarantor agree to deliver to the Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if reasonably requested by an Initial
Purchaser or such other representative of Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers
upon consummation of the Exchange Offer (i) an opinion of
counsel in form and substance reasonably satisfactory to such
Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with Exchange
Offer Registration Statements and such other matters as may be
reasonably requested (it being agreed that the matters to be
covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
substantially similar to that specified in Section 6(d) and
(e) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public
offering of debt securities and (iii) upon the effectiveness
of the Exchange Offer Registration Statement, comfort letters,
in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company and the Guarantor may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company and the
Guarantor such information regarding such seller as may be required by the staff
of the SEC to be included in a Registration Statement. The Company and the
Guarantor may exclude from such registration the Registrable Securities of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company and the Guarantor shall have no
obligation to register under the Securities Act the Registrable Securities of a
seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company and the Guarantor that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in this Section 3(s) are seeking to sell Exchange Securities and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of any
notice from the Company and the Guarantor of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Guarantor that
the use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Guarantor, such Holder will deliver to the Company and the
Guarantor (at the Company's and the Guarantor's expense) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company and the Guarantor shall
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give any such notice to suspend the disposition of Registrable Securities or
Exchangeable Securities, as the case may be, pursuant to a Registration
Statement, the Company and the Guarantor shall use its reasonable best efforts
to file and have declared effective (if an amendment) as soon as practicable
after the resolution of the related matters an amendment or supplement to the
Registration Statement and shall extend the period during which such
Registration Statement is required to be maintained effective and the Prospectus
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company and the Guarantor shall have made available to the
Holders (x) copies of the supplemented or amended Prospectus necessary to resume
such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any Registration
Statement, the Company and the Guarantor shall jointly and severally indemnify
and hold harmless the Initial Purchasers, each Holder, each underwriter who
participates in an offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or
supplement thereto), covering Registrable Securities or
Exchange Securities, as applicable, or the omission or alleged
omission therefrom of a material fact required to be stated or
necessary in order to make this statement therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such
settlement is effected with the prior written consent of the
Company and the Guarantor; and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel
chosen by such Holder, such Participating Broker-Dealer, or
any underwriter (except to the extent otherwise expressly
provided in Section 4(c) hereof)), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of
this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company and the
Guarantor by the Initial Purchasers or such Holder, underwriter or Participating
Broker-Dealer for use in a Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or Participating
Broken-Dealer agrees, severally and not jointly, to indemnify and hold harmless
the Company and the Guarantor and each Person, if any, who controls the Company
or the Guarantor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company and the Guarantor by such Initial Purchaser, Holder,
underwriter or Participating Broker-Dealer expressly for use in such
Registration Statement (or any amendment thereto), or any such Prospectus (or
any
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amendment or supplement thereto); provided, however, that in the case of a Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
Agreement. In the case of parties indemnified pursuant to Section 4(a) or (b)
above, counsel to the indemnified parties shall be selected by such parties. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in circumstances
under which any of the indemnity provisions set forth in this Section 4 is for
any reason held to be unenforceable by an indemnified party although applicable
in accordance with its terms, the Company, the Guarantor and the Holders shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company, the
Guarantor and the Holders, as incurred; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the Company and the
Guarantor and the Holders, such parties shall contribute to such aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
this Agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company and the Guarantor, on the one hand, and the
Holders, on the other hand, with respect to the statements or omissions which
resulted in such loss, liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantor, on the one hand, and of the Holders, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Guarantor, on the one hand, or by or on behalf of the Holders,
on the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Guarantor and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 4, each
Affiliate of a Holder, and each director, officer and employee and Person, if
any, who controls a Holder or such Affiliate within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as such Holder and each Person, if any, who controls the Company
and the Guarantor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company and the Guarantor.
5. Participation in an Underwritten Registration. No Holder may participate in
an underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in the underwriting
arrangement approved by the Persons entitled hereunder to approve such
arrangements and
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(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
reasonably required under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities covered by
the Shelf Registration Statement who desire to do so may sell the Securities
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(l) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering; provided,
however, that such underwriters and managers must be reasonably satisfactory to
the Company and the Guarantor.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company and the Guarantor are
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Company and the Guarantor
will file the reports required to be filed by it under the Securities Act and
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations adopted
by the SEC thereunder; provided, however, that if the Company and the Guarantor
ceases to be so required to file such reports, it will, upon the request of any
Holder of Registrable Securities, (a) make publicly available such information
as is necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, (ii)
Rule 144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company and the
Guarantor will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company and the Guarantor have not entered
into, nor will the Company or the Guarantor on or after the date of this
Agreement enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's and the Guarantor's other issued
and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company and the Guarantor has obtained the written consent of Holders
of a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Guarantor and the Initial Purchasers, to
cure any ambiguity, correct or supplement any provision of this Agreement that
may be inconsistent with any other provision of this Agreement or to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the Guarantor and the Initial
Purchasers to the extent that any such amendment, modification, supplement,
waiver or consent is, in their reasonable judgment, necessary or appropriate to
comply with applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision of this
Agreement relates to an Initial Purchaser, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by
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written agreement signed by such Initial Purchaser, the Guarantor and the
Company.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company and
the Guarantor by means of a notice given in accordance with the provisions of
this Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Guarantor, initially at the Company's and Guarantor's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of the Initial Purchasers,
including, without limitation and without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating Broker-Dealer
shall be third party beneficiaries of the agreements made hereunder among the
Initial Purchasers, the Guarantor and the Company, and the Initial Purchasers
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE
OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS
AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
(j) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company, the Guarantor or
their Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
QWEST COMMUNICATIONS INTERNATIONAL
INC.
By:
-------------------------------
Name:
Title:
QWEST CAPITAL FUNDING, INC.
By:
-------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: BANC OF AMERICA SECURITIES LLC
By:
------------------------------
Authorized Signatory
By: CHASE SECURITIES INC.
By: ------------------------------
Authorized Signatory
For themselves and as Representatives of the several Initial Purchasers
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