**EXHIBIT 10.1**

 

 

 

**REGISTRATION RIGHTSAGREEMENT**

 

 

**Datedas of October 14, 2004**

**byand among**

 

**UBIQUITELOPERATING COMPANY**

**UBIQUITELINC.**

 

**and**

 

**BEAR,STEARNS & CO. INC.**

**BANCOF AMERICA SECURITIES LLC**

 

 

 

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This Registration Rights Agreement (this “**Agreement**”) is made and enteredinto as of October 14, 2004, by and among UbiquiTel Operating Company, aDelaware corporation (the “**Company**”),UbiquiTel Inc. (together with any new party to this Agreement pursuant toSection 6(d) hereof, each a “**Guarantor**”and, together, the “**Guarantors**”) and Bear, Stearns & Co. Inc. and Banc of America Securities LLC (each an“**Initial Purchaser**” and, together,the “**Initial Purchasers**”), each of whomhas agreed to purchase the Company’s 97/8% Senior Notesdue 2011 (the “**Initial Notes**”)pursuant to the Purchase Agreement (as defined below).

 

This Agreement is made pursuant to the PurchaseAgreement, dated September 29, 2004 (the “**Purchase Agreement**”),by and among the Company, the Guarantor and the Initial Purchasers.  In order to induce the Initial Purchasers topurchase the Initial Notes, the Company has agreed to provide the registrationrights set forth in this Agreement.  Theexecution and delivery of this Agreement is a condition to the obligations ofthe Initial Purchasers set forth in Section 10 of the Purchase Agreement.  Capitalized terms used herein and nototherwise defined shall have the meaning assigned to them in the Indenture,dated as of February 23, 2004, among the Company, the Guarantor and The Bank ofNew York, as trustee, relating to the Initial Notes and the Exchange Notes (the“**Indenture**”).

 

The parties hereby agree as follows:

 

# **SECTION 1.  **              DEFINITIONS

# ** **

As used in this Agreement, the following capitalizedterms shall have the following meanings:

 

**Act**:  The Securities Act of 1933, as amended.

 

**Affiliate**:  As defined in Rule 144.

 

**Broker-Dealer**:  Any broker or dealer registered under theExchange Act.

 

**Business Day**:  Anyday other than a Saturday, a Sunday or a day on which banking institutions inthe City of New York or at place of payment are authorized by law, regulationor executive order to remain closed.

 

**Closing Date**:  The date hereof.

 

**Commission**:  The Securities and Exchange Commission.

 

**Consummate**:  An Exchange Offer shall be deemed“Consummated” for purposes of this Agreement upon the occurrence of (a) thefiling and effectiveness under the Act of the Exchange Offer RegistrationStatement relating to the Exchange Notes to be issued in the Exchange Offer,(b) the maintenance of such Exchange Offer Registration Statement continuouslyeffective and the keeping of the Exchange Offer open for a period not less thanthe period required pursuant to Section 3(b) hereof and (c) the delivery by theCompany to the Registrar under the Indenture of Exchange Notes in the sameaggregate principal amount as the aggregate principal amount of Initial Notesvalidly tendered by Holders thereof and accepted by the Company pursuant to theExchange Offer.

 

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**Consummation Deadline**:  As defined in Section 3(b) hereof.

 

**Effectiveness Deadline**:  As defined in Sections 3(a) and 4(a) hereof.

 

**Exchange Act**:  The Securities Exchange Act of 1934, asamended.

 

**Exchange Notes**:  The Company’s 97/8%Senior Notes due 2011 to be issued pursuant to the Indenture: (i) in theExchange Offer or (ii) as contemplated by Section 4 hereof.

 

**Exchange Offer**:  The exchange and issuance by the Company of aprincipal amount of Exchange Notes (which shall be registered pursuant to theExchange Offer Registration Statement) equal to the outstanding principal amountof Initial Notes that are validly tendered by such Holders and accepted by theCompany in connection with such exchange and issuance.

 

**Exchange Offer Registration Statement**:  The Registration Statement relating to theExchange Offer, including the related Prospectus.

 

**Filing Deadline**:  As defined in Sections 3(a) and 4(a) hereof.

 

**Holders**:  As defined in Section 2 hereof.

 

**Prospectus**:  The prospectus included in a RegistrationStatement at the time such Registration Statement is declared effective, as amendedor supplemented by any prospectus supplement and by all other amendmentsthereto, including post-effective amendments, and all material incorporated byreference into such Prospectus.

 

**Recommencement Date**:  As defined in Section 6(d) hereof.

 

**Registration Default**:  As defined in Section 5 hereof.

 

**Registration Statement**:  Any registration statement of the Company andthe Guarantor(s) relating to (a) an offering of Exchange Notes pursuant to anExchange Offer or (b) the registration for resale of Transfer RestrictedSecurities pursuant to the Shelf Registration Statement, in each case, (i) thatis filed pursuant to the provisions of this Agreement, (ii) including theProspectus included therein, and (iii) including all amendments and supplementsthereto (including post-effective amendments) and all exhibits and materialincorporated by reference therein.

 

**Rule 144**:  Rule 144 promulgated under the Act.

 

**Shelf Registration Statement**:  As defined in Section 4 hereof.

 

**Suspension Notice**:  As defined in Section 6(d) hereof.

 

**TIA**:  The Trust Indenture Act of 1939 (15 U.S.C.Section 77aaa-77bbbb) as in effect on the date of the Indenture.

 

**Transfer Restricted Securities**:  Each Initial Note until the earliest to occurof (a) the date on which such Initial Note has been validly exchanged in theExchange Offer by a Person

 

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other than a Broker-Dealer for an Exchange Noteentitled to be resold to the public by the Holder thereof without complyingwith the prospectus delivery requirements of the Act, (b) following the validexchange by a Broker-Dealer in the Exchange Offer of an Initial Note for anExchange Note, the date on which such Exchange Note is sold to a purchaser whoreceives from such Broker-Dealer on or prior to the date of such sale a copy ofthe Prospectus contained in the Exchange Offer Registration Statement, (c) thedate on which such Initial Note has been effectively registered under the Actand disposed of in accordance with the Shelf Registration Statement (and thepurchasers thereof have been issued Exchange Notes) or (d) the date on whichsuch Initial Note is distributed to the public pursuant to Rule 144.

 

# **SECTION 2.  **              HOLDERS

# ** **

A Person is deemed to be a holder of TransferRestricted Securities (each, a “**Holder**”) whenever such Person owns Transfer Restricted Securities.

 

# **SECTION 3.  **              REGISTERED EXCHANGE OFFER

# ** **

## (a)           Unlessthe Exchange Offer shall not be permitted by applicable law or Commissionpolicy (after the procedures set forth in Section 6(a)(i) below have beencomplied with), the Company and the Guarantor(s) shall (i) cause the ExchangeOffer Registration Statement to be filed with the Commission no later than 75days after the Closing Date or, if such 75th day is not a Business Day, on thenext succeeding Business Day (such 75th day or next succeeding Business Daybeing the **“Filing Deadline”**), (ii) use allcommercially reasonable efforts to cause such Exchange Offer RegistrationStatement to become effective no later than 180 days after the Closing Date or,if such 180th day is not a Business Day, on the next succeeding Business Day(such 180th day or next succeeding Business Day being the “**EffectivenessDeadline**”), (iii) in connection with the foregoing, (A) file allpre-effective amendments to such Exchange Offer Registration Statement as maybe necessary in order to cause it to become effective, (B) file, if applicable,a post-effective amendment to such Exchange Offer Registration Statementpursuant to Rule 430A under the Act and (C) cause all necessary filings, ifany, in connection with the registration and qualification of the ExchangeNotes to be made under the Blue Sky laws of such jurisdictions as are necessaryto permit Consummation of the Exchange Offer, and (iv) upon the effectivenessof such Exchange Offer Registration Statement, commence and Consummate theExchange Offer.  The Exchange Offer shallbe on the appropriate form permitting (i) registration of the Exchange Notes tobe offered in exchange for the Initial Notes that are Transfer RestrictedSecurities and (ii) resales of Exchange Notes by Broker-Dealers that tenderedinto the Exchange Offer Initial Notes that such Broker-Dealer acquired for itsown account as a result of market-making activities or other trading activities(other than Initial Notes acquired directly from the Company or any of itsAffiliates) as contemplated by Section 3(c) below.

##  

## (b)           TheCompany and the Guarantor(s) shall use all commercially reasonable efforts tocause the Exchange Offer Registration Statement to be effective continuously,and shall keep the Exchange Offer open for a period of not less than theminimum period required under applicable federal and state securities laws toConsummate the Exchange Offer; *provided, however,*that in no event shall such period be less than 20 Business Days.  The Company and the Guarantor(s) shall causethe Exchange Offer to comply with all applicable federal and state

 

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## securities laws.  No securitiesother than the Exchange Notes shall be included in the Exchange OfferRegistration Statement.  The Company andthe Guarantor(s) shall use all commercially reasonable efforts to cause theExchange Offer to be Consummated on the earliest practicable date after theExchange Offer Registration Statement has become effective, but in no eventlater than 30 Business Days or longer, if required by the federal securitieslaws, after the date on which the Exchange Offer Registration Statement hasbecome effective (such 30th day, or such later date required by the federalsecurities laws, being the “**Consummation Deadline**”).

##  

## (c)           TheCompany shall include a “Plan of Distribution” section in the Prospectuscontained in the Exchange Offer Registration Statement and indicate therein thatany Broker-Dealer who holds Transfer Restricted Securities that were acquiredfor the account of such Broker-Dealer as a result of market-making activitiesor other trading activities (other than Initial Notes acquired directly fromthe Company or any Affiliate of the Company), may exchange such TransferRestricted Securities pursuant to the Exchange Offer.  Such “Plan of Distribution” section shallalso contain all other information with respect to such sales by suchBroker-Dealers that the Commission may require in order to permit such salespursuant thereto, but such “Plan of Distribution” shall not name any suchBroker-Dealer or disclose the amount of Transfer Restricted Securities held byany such Broker-Dealer, except to the extent required by the Commission as aresult of a change in policy, rules or regulations after the date of thisAgreement.  See the Shearman &Sterling no-action letter (available July 2, 1993).

##  

Because such Broker-Dealer may be deemed to be an“underwriter” within the meaning of the Act and must, therefore, deliver aprospectus meeting the requirements of the Act in connection with its initialsale of any Exchange Notes received by such Broker-Dealer in the ExchangeOffer, the Company and Guarantor(s) shall permit the use of the Prospectuscontained in the Exchange Offer Registration Statement by such Broker-Dealer tosatisfy such prospectus delivery requirement. To the extent necessary to ensure that the Prospectus contained in theExchange Offer Registration Statement is available for sales of Exchange Notesby Broker-Dealers, the Company and the Guarantor(s) agree to use allcommercially reasonable efforts to keep the Exchange Offer RegistrationStatement continuously effective, supplemented, amended and current as requiredby and subject to the provisions of Sections 6(a) and (c) hereof and inconformity with the requirements of this Agreement, the Act and the policies,rules and regulations of the Commission as announced from time to time, for aperiod of one year from the Consummation Deadline or such shorter period aswill terminate when all Transfer Restricted Securities covered by suchRegistration Statement have been sold pursuant thereto.  The Company and the Guarantor(s) shall providesufficient copies of the latest version of such Prospectus to suchBroker-Dealers, promptly upon request, and in no event later than one day aftersuch request, at any time during such period.

 

# **SECTION 4.  **              SHELF REGISTRATION

# ** **

## (a)           ShelfRegistration.  If (i) the Company andthe Guarantor(s) are not (A) required to file the Exchange Offer RegistrationStatement or (B) permitted to Consummate the Exchange Offer because theExchange Offer is not permitted by applicable law or Commission policy (afterthe Company and the Guarantor(s) have complied with the procedures set forth inSection 6(a)(i) below) or (ii) any Holder notifies in writing the Company priorto 20 Business Days following Consummation of the Exchange Offer that (A) suchHolder was prohibited by law or

 

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## Commission policy from participating in the Exchange Offer, (B) suchHolder may not resell the Exchange Notes acquired by it in the Exchange Offerto the public without delivering a prospectus and the Prospectus contained inthe Exchange Offer Registration Statement is not appropriate or available forsuch resales by such Holder or (C) such Holder is a Broker-Dealer and holdsInitial Notes acquired directly from the Company or any of its Affiliates, thenthe Company and the Guarantor(s) shall:

##  

(x) use all commercially reasonable efforts on orprior to 30 days (or, if such 30th day is not a Business Day, on the nextsucceeding Business Day) after the earlier of (i) the date as of which theCompany determines that the Exchange Offer Registration Statement will not beor cannot be, as the case may be, filed as a result of clause (a)(i) above and(ii) the date on which the Company receives the notice specified in clause(a)(ii) above (30 days (or next succeeding Business Day) after such earlierdate, the “**Filing Deadline**”), to file ashelf registration statement pursuant to Rule 415 under the Act (which may bean amendment to the Exchange Offer Registration Statement (the “**Shelf Registration Statement**”)),relating to all Transfer Restricted Securities, and

 

(y) shall use all commercially reasonable efforts tocause such Shelf Registration Statement to become effective on or prior to 60days (or, if such 60th day is not a Business Day, on the next succeedingBusiness Day) after the Filing Deadline for the Shelf Registration Statement(such 60th day (or next succeeding Business Day) the “**EffectivenessDeadline**”).

 

If, after the Company and the Guarantor(s) have filedan Exchange Offer Registration Statement that satisfies the requirements of Section3(a) above, the Company and the Guarantor(s) are required to file and makeeffective a Shelf Registration Statement solely because the Exchange Offer isnot permitted under applicable federal law (i.e., clause (a)(i)(B) above), thenthe filing of the Exchange Offer Registration Statement shall be deemed tosatisfy the requirements of clause (x) above; *provided*that, in such event, the Company and the Guarantor(s) shall remain obligated tomeet the Effectiveness Deadline set forth in clause (y).

 

To the extent necessary to ensure that the ShelfRegistration Statement is available for sales of Transfer Restricted Securitiesby the Holders thereof entitled to the benefit of this Section 4(a) and theother securities required to be registered therein pursuant to Section 6(b)(ii)hereof, the Company and the Guarantor(s) shall use all commercially reasonableefforts to keep any Shelf Registration Statement required by this Section 4(a)continuously effective, supplemented, amended and current as required by andsubject to the provisions of Sections 6(b) and (c) hereof and in conformitywith the requirements of this Agreement, the Act and the policies, rules andregulations of the Commission as announced from time to time, until theexpiration of the period referred to in Rule 144(k), or such shorter period aswill terminate when all Transfer Restricted Securities covered by such ShelfRegistration Statement have been sold pursuant thereto.

 

## (b)           Provisionby Holders of Certain Information in Connection with the Shelf RegistrationStatement.  No Holder may include anyof its Transfer Restricted Securities in any Shelf Registration Statementpursuant to this Agreement unless and until such Holder furnishes to theCompany in writing, within 20 days after receipt of a request therefor, theinformation specified in Item 507 or 508 of Regulation S-K, as applicable, ofthe Act for use in connection

 

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## with any Shelf Registration Statement or Prospectus or preliminary prospectusincluded therein.  No Holder shall beentitled to liquidated damages pursuant to Section 5 hereof unless and untilsuch Holder shall have provided all such information.  Each selling Holder agrees to promptlyfurnish additional information required to be disclosed in order to make theinformation previously furnished to the Company by such Holder not materiallymisleading.

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# **SECTION 5.  **              LIQUIDATED DAMAGES

# ** **

If (i) any Registration Statement required by thisAgreement is not filed with the Commission on or prior to the applicable FilingDeadline, (ii) any such Registration Statement has not been declared effectiveby the Commission on or prior to the applicable Effectiveness Deadline, (iii)the Exchange Offer has not been Consummated on or prior to 30 Business Daysafter the Effectiveness Deadline with respect to the Exchange OfferRegistration Statement or (iv) any Registration Statement required by thisAgreement is filed and declared effective but shall thereafter cease to beeffective or usable for its intended purpose (each such event referred to inclauses (i) through (iv), a **“Registration Default”**),then the Company and the Guarantor(s) hereby jointly and severally agree to payto each Holder affected thereby liquidated damages in an amount equal to $0.05per week per $1,000 in principal amount of Transfer Restricted Securities heldby such Holder for each week or portion thereof that the Registration Defaultcontinues for the first 90-day period immediately following the occurrence ofsuch Registration Default.  The amount ofthe liquidated damages shall increase by an additional $0.05 per week per$1,000 in principal amount of Transfer Restricted Securities with respect toeach subsequent 90-day period until all Registration Defaults have been cured,up to a maximum amount of liquidated damages of $0.50 per week per $1,000 inprincipal amount of Transfer Restricted Securities; *provided*that the Company and the Guarantor(s) shall in no event be required to payliquidated damages for more than one Registration Default at any giventime.  Notwithstanding anything to thecontrary set forth herein, (1) upon filing of the Exchange Offer RegistrationStatement (and/or, if applicable, the Shelf Registration Statement), in thecase of clause (i) above, (2) upon the effectiveness of the Exchange OfferRegistration Statement (and/or, if applicable, the Shelf RegistrationStatement), in the case of clause (ii) above, (3) upon Consummation of theExchange Offer, in the case of clause (iii) above, or (4) upon the filing of apost-effective amendment to the Registration Statement or an additionalRegistration Statement that causes the Exchange Offer Registration Statement(and/or, if applicable, the Shelf Registration Statement) to again be declaredeffective or made usable in the case of clause (iv) above, the liquidateddamages payable with respect to the Transfer Restricted Securities as a resultof such clause (i), (ii), (iii) or (iv), as applicable, shall cease.  Notwithstanding the foregoing, in the eventof a Registration Default of the type described under clause (iv) above, theliquidated damages payable with respect to the Transfer Restricted Securitiesshall cease to accrue thereon upon the expiration of the period referred to inRule 144(k) under the Act.

 

All accrued liquidated damages shall be paid to theHolders entitled thereto, in the manner provided for the payment of interest inthe Indenture, on each Interest Payment Date, as more fully set forth in theIndenture and the Notes.  Notwithstandingthe fact that any securities for which liquidated damages are due cease to beTransfer Restricted Securities, all obligations of the Company and theGuarantor(s) to pay liquidated damages with respect to securities shall surviveuntil such time as such obligations with respect to such securities shall havebeen satisfied in full.

 

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# **SECTION 6.  **              REGISTRATION PROCEDURES

# ** **

## (a)           ExchangeOffer Registration Statement.  Inconnection with the Exchange Offer, the Company and the Guarantor(s) shall (x)comply with all applicable provisions of Section 6(c) below, (y) use allcommercially reasonable efforts to effect such exchange and to permit theresale of Exchange Notes by Broker-Dealers that tendered in the Exchange OfferInitial Notes that such Broker-Dealer acquired for its own account as a resultof its market-making activities or other trading activities (other than InitialNotes acquired directly from the Company or any of its Affiliates) being soldin accordance with the intended method or methods of distribution thereof, and(z) comply with all of the following provisions:

##  

### (i)            If,following the date hereof there has been announced a change in Commissionpolicy with respect to exchange offers such as the Exchange Offer, that in thereasonable opinion of counsel to the Company raises a substantial question asto whether the Exchange Offer is permitted by applicable federal law, theCompany and the Guarantor(s) hereby agree to seek a no-action letter or otherfavorable decision from the Commission allowing the Company and theGuarantor(s) to Consummate an Exchange Offer for such Transfer RestrictedSecurities.  The Company and theGuarantor(s) hereby agree to pursue the issuance of such a decision to theCommission staff level.  In connectionwith the foregoing, the Company and the Guarantor(s) hereby agree to take allsuch other actions as may be requested by the Commission or otherwise requiredin connection with the issuance of such decision, including without limitation(A) participating in telephonic conferences with the Commission, (B) deliveringto the Commission staff an analysis prepared by counsel to the Company settingforth the legal bases, if any, upon which such counsel has concluded that suchan Exchange Offer should be permitted and (C) diligently pursuing a resolution(which need not be favorable) by the Commission staff.

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### (ii)           As acondition to its participation in the Exchange Offer, each Holder (including,without limitation, any Holder who is a Broker-Dealer) shall furnish, upon therequest of the Company, prior to the Consummation of the Exchange Offer, awritten representation to the Company and the Guarantor(s) (which may becontained in the letter of transmittal contemplated by the Exchange Offer RegistrationStatement) to the effect that (A) it is not an Affiliate of the Company, (B) itis not engaged in, and does not intend to engage in, and has no arrangement orunderstanding with any person to participate in, a distribution of the ExchangeNotes to be issued in the Exchange Offer and (C) it is acquiring the ExchangeNotes in its ordinary course of business. As a condition to its participation in the Exchange Offer each Holderusing the Exchange Offer to participate in a distribution of the Exchange Notesshall acknowledge and agree that, if the resales are of Exchange Notes obtainedby such Holder in exchange for Initial Notes acquired directly from the Companyor an Affiliate thereof, it (1) could not, under Commission policy as in effecton the date of this Agreement, rely on the position of the Commissionenunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and ExxonCapital Holdings Corporation (available May 13, 1988), as interpreted inthe Commission’s letter to Shearman & Sterling dated July 2, 1993,and similar no-action letters (including, if applicable, any no-action letterobtained pursuant to clause (i) above), and (2) must comply with theregistration and prospectus delivery requirements of the Act in

 

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### connection with asecondary resale transaction and that such a secondary resale transaction mustbe covered by an effective registration statement containing the sellingsecurity holder information required by Item 507 or 508, as applicable, ofRegulation S-K.

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### (iii)          Priorto effectiveness of the Exchange Offer Registration Statement, the Company andthe Guarantor(s) shall provide a supplemental letter to the Commission (A)stating that the Company and the Guarantor(s) are registering the ExchangeOffer in reliance on the position of the Commission enunciated in ExxonCapital Holdings Corporation (available May 13, 1988), Morgan Stanleyand Co., Inc. (available June 5, 1991) as interpreted in the Commission’sletter to Shearman & Sterling dated July 2, 1993, and, ifapplicable, any no-action letter obtained pursuant to clause (i) above, (B)including a representation that neither the Company nor any Guarantor hasentered into any arrangement or understanding with any Person to distribute theExchange Notes to be received in the Exchange Offer and that, to the best ofthe Company’s and each Guarantor’s information and belief, each Holderparticipating in the Exchange Offer is acquiring the Exchange Notes in itsordinary course of business and has no arrangement or understanding with anyPerson to participate in the distribution of the Exchange Notes received in theExchange Offer and (C) any other undertaking or representation required by theCommission as set forth in any no-action letter obtained pursuant to clause (i)above, if applicable.

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## (b)           ShelfRegistration Statement. In connection with the Shelf RegistrationStatement, the Company and the Guarantor(s) shall:

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### (i)            complywith all the provisions of Section 6(c) below and use all commerciallyreasonable efforts to effect such registration to permit the sale of theTransfer Restricted Securities being sold in accordance with the intendedmethod or methods of distribution thereof (as indicated in the informationfurnished to the Company pursuant to Section 4(b) hereof), and pursuant theretothe Company and the Guarantor(s) will prepare and file with the Commission aRegistration Statement relating to the registration on any appropriate formunder the Act, which form shall be available for the sale of the TransferRestricted Securities in accordance with the intended method or methods ofdistribution thereof within the time periods and otherwise in accordance withthe provisions hereof, and

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### (ii)           issue,upon the request of any Holder or purchaser of Initial Notes covered by anyShelf Registration Statement contemplated by this Agreement, Exchange Noteshaving an aggregate principal amount equal to the aggregate principal amount ofInitial Notes sold pursuant to the Shelf Registration Statement and surrenderedto the Company for cancellation; the Company shall register Exchange Notes onthe Shelf Registration Statement for this purpose and issue the Exchange Notesto the purchaser(s) of securities subject to the Shelf Registration Statementin the names as such purchaser(s) shall designate.

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## (c)           GeneralProvisions.  In connection with anyRegistration Statement and any related Prospectus required by this Agreement,the Company and the Guarantor(s) shall:

 

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### (i)            use allcommercially reasonable efforts to keep such Registration Statementcontinuously effective and provide all requisite financial statements for theperiod specified in Section 3 or 4 of this Agreement, as applicable.  Upon the occurrence of any event that wouldcause any such Registration Statement or the Prospectus contained therein (A)to contain an untrue statement of material fact or omit to state any materialfact necessary to make the statements therein not misleading or (B) not to beeffective and usable for resale of Transfer Restricted Securities during theperiod required by this Agreement, the Company and the Guarantor(s) shall filepromptly an appropriate amendment to such Registration Statement curing suchdefect, and, if Commission review is required, use all commercially reasonableefforts to cause such amendment to be declared effective as soon aspracticable.

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### (ii)           prepareand file with the Commission such amendments and post-effective amendments tothe applicable Registration Statement as may be necessary to keep suchRegistration Statement effective for the applicable period set forth in Section3 or 4 hereof, as the case may be; cause the Prospectus to be supplemented byany required Prospectus supplement, and as so supplemented to be filed pursuantto Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, asapplicable, under the Act in a timely manner; and comply with the provisions ofthe Act with respect to the disposition of all securities covered by suchRegistration Statement during the applicable period in accordance with theintended method or methods of distribution by the sellers thereof set forth insuch Registration Statement or supplement to the Prospectus;

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### (iii)          adviseeach Holder promptly and, if requested by such Holder, confirm such advice inwriting, (A) when the Prospectus or any Prospectus supplement or post-effectiveamendment has been filed, and, with respect to any applicable RegistrationStatement or any post-effective amendment thereto, when the same has becomeeffective, (B) of any request by the Commission for amendments to theRegistration Statement or amendments or supplements to the Prospectus or foradditional information relating thereto, (C) of the issuance by the Commissionof any stop order suspending the effectiveness of the Registration Statementunder the Act or of the suspension by any state securities commission of thequalification of the Transfer Restricted Securities for offering or sale in anyjurisdiction, or the initiation of any proceeding for any of the precedingpurposes, and (D) of the existence of any fact or the happening of any eventthat makes any statement of a material fact made in the Registration Statement,the Prospectus, any amendment or supplement thereto or any documentincorporated by reference therein untrue, or that requires the making of anyadditions to or changes in the Registration Statement in order to make thestatements therein not misleading, or that requires the making of any additionsto or changes in the Prospectus in order to make the statements therein, in thelight of the circumstances under which they were made, not misleading.  If at any time the Commission shall issue anystop order suspending the effectiveness of the Registration Statement, or anystate securities commission or other regulatory authority shall issue an ordersuspending the qualification or exemption from qualification of the TransferRestricted Securities under state securities or Blue Sky laws, the Company andthe Guarantor(s) shall use all commercially reasonable efforts to obtain thewithdrawal or lifting of such order at the earliest possible time;

 

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### (iv)          subject toSection 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D)above shall exist or have occurred, prepare a supplement or post-effectiveamendment to the Registration Statement or related Prospectus or any documentincorporated therein by reference or file any other required document so that,as thereafter delivered to the purchasers of Transfer Restricted Securities,the Prospectus will not contain an untrue statement of a material fact or omitto state any material fact necessary to make the statements therein, in the lightof the circumstances under which they were made, not misleading;

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### (v)           furnish toeach Holder in connection with such exchange, registration or sale, if any,before filing with the Commission, copies of any Registration Statement or anyProspectus included therein or any amendments or supplements to any suchRegistration Statement or Prospectus (and, if requested by any Holder, alldocuments incorporated by reference after the initial filing of suchRegistration Statement), which documents will be subject to the review andcomment of such Holders in connection with such sale, if any, for a period ofat least five Business Days, and the Company will not file any suchRegistration Statement or Prospectus or any amendment or supplement to any suchRegistration Statement or Prospectus (including all such documents incorporatedby reference) to which such Holders shall reasonably object within fiveBusiness Days after the receipt thereof. A Holder shall be deemed to have reasonably objected to such filing ifsuch Registration Statement, amendment, Prospectus or supplement, asapplicable, as proposed to be filed, contains an untrue statement of a materialfact or omits to state any material fact necessary to make the statementstherein not misleading or fails to comply with the applicable requirements ofthe Act;

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### (vi)          upon therequest of any Holder, prior to the filing of any document that is to beincorporated by reference into a Registration Statement or Prospectus inconnection with such exchange, registration or sale, if any, provide copies ofsuch document to each Holder, make the Company’s and the Guarantor(s)’representatives available for discussion of such document and other customarydue diligence matters, and include such information in such document prior tothe filing thereof as such Holders may reasonably request, subject to theadvice of counsel to the Company and the Guarantor(s);

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### (vii)         makeavailable, at reasonable times, for inspection by each Holder and any attorneyor accountant retained by such Holders, all financial and other records,pertinent corporate documents of the Company and the Guarantor(s) and cause theCompany’s and the Guarantor(s)’ officers, directors and employees to supply allinformation reasonably requested by any such Holder, attorney or accountant inconnection with such Registration Statement or any post-effective amendmentthereto subsequent to the filing thereof and prior to its effectiveness,subject, in the case of information that is not public, to the execution by anysuch Holder of confidentiality agreements reasonably satisfactory to theCompany and the Guarantor(s);

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### (viii)        ifrequested by any Holders in connection with such exchange, registration orsale, promptly include in any Registration Statement or Prospectus, pursuant toa supplement or post-effective amendment if necessary, such information as suchHolders may reasonably request to have included therein and that is required bythe federal

 

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### securities laws to be so included, including, without limitation,information relating to the “Plan of Distribution” of the Transfer RestrictedSecurities; and make all required filings of such Prospectus supplement orpost-effective amendment as soon as practicable after the Company is notifiedof the matters to be included in such Prospectus supplement or post-effectiveamendment;

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### (ix)           furnish toeach Holder in connection with such exchange, registration or sale, withoutcharge, at least one copy of the Registration Statement, as first filed withthe Commission, and of each amendment thereto (and, if requested by any Holder,all documents incorporated by reference therein and all exhibits (includingexhibits incorporated therein by reference));

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### (x)            deliverto each Holder without charge, as many copies of the Prospectus (including eachpreliminary prospectus) and any amendment or supplement thereto as such Personsreasonably may request; the Company and the Guarantor(s) hereby consent to theuse (in accordance with law) of the Prospectus and any amendment or supplementthereto by each selling Holder in connection with the offering and the sale ofthe Transfer Restricted Securities covered by the Prospectus or any amendmentor supplement thereto;

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### (xi)           upon therequest of any Holder, enter into such customary agreements (includingunderwriting agreements) and make such customary representations and warrantiesand take all such other customary actions in connection therewith in order toexpedite or facilitate the disposition of the Transfer Restricted Securitiespursuant to any applicable Registration Statement contemplated by thisAgreement as may be reasonably requested by any Holder in connection with anysale or resale pursuant to any applicable Registration Statement.  In such connection, the Company and theGuarantor(s) shall:

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#### (A)          uponrequest of any Holder, furnish (or in the case of paragraphs (2) and (3), useits commercially reasonable efforts to cause to be furnished) to each Holder,upon Consummation of the Exchange Offer or upon the effectiveness of the ShelfRegistration Statement, as the case may be:

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##### (1)           acertificate, dated such date, signed on behalf of the Company and eachGuarantor by (x) the President or any Vice President and (y) a principalfinancial or accounting officer of the Company and such Guarantor, confirming,as of the date thereof, such matters as such Holders may reasonably request;

#####  

##### (2)           anopinion, dated the date of Consummation of the Exchange Offer or the date ofeffectiveness of the Shelf Registration Statement, as the case may be, ofcounsel for the Company and the Guarantor(s) in customary form and coveringsuch other matters as such Holder may reasonably request, and in any eventincluding a statement to the effect that such counsel has participated inconferences with officers and other representatives of the Company and theGuarantor(s) and representatives of the independent public accountants for theCompany and the Guarantor(s) and have considered the matters required to be stated

 

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#####  

##### therein and the statements contained therein, although (i) such counselis not passing upon and does not assume responsibility for the accuracy,completeness or fairness of such statements, and (ii) such counsel has notindependently verified the accuracy, completeness or fairness of suchstatements; and that such counsel advises that, on the basis of the foregoing(relying as to materiality to the extent such counsel deems appropriate uponthe statements of officers and other representatives of the Company and theGuarantor(s)) and without independent check or verification), no facts came tosuch counsel’s attention that caused such counsel to believe that theapplicable Registration Statement, at the time such Registration Statement orany post-effective amendment thereto became effective and, in the case of theExchange Offer Registration Statement, as of the date of Consummation of theExchange Offer, contained an untrue statement of a material fact or omitted tostate a material fact required to be stated therein or necessary to make thestatements therein not misleading, or that the Prospectus contained in suchRegistration Statement as of its date and, in the case of the opinion dated thedate of Consummation of the Exchange Offer, as of the date of Consummation,contained an untrue statement of a material fact or omitted to state a materialfact necessary in order to make the statements therein, in the light of thecircumstances under which they were made, not misleading.  Without limiting the foregoing, such counselmay state further that such counsel assumes no responsibility for, and has notindependently verified, the accuracy, completeness or fairness of the financialstatements, notes and schedules and other financial data included in anyRegistration Statement contemplated by this Agreement or the relatedProspectus; and

#####  

##### (3)           acustomary comfort letter, dated the date of Consummation of the Exchange Offer,or as of the date of effectiveness of the Shelf Registration Statement, as thecase may be, from the Company’s independent accountants, in the customary formand covering matters of the type customarily covered in comfort letters tounderwriters in connection with underwritten offerings, and affirming thematters set forth in the comfort letters delivered pursuant to Section 10(h) ofthe Purchase Agreement; and

#####  

#### (B)           deliversuch other documents and certificates as may be reasonably requested by theselling Holders to evidence compliance with the matters covered in clause (A)above and with any customary conditions contained in any agreement entered intoby the Company and the Guarantor(s) pursuant to this clause (xi);

####  

### (xii)          priorto any public offering of Transfer Restricted Securities, cooperate with theselling Holders and their counsel in connection with the registration andqualification of the Transfer Restricted Securities under the securities orBlue Sky laws of such jurisdictions as the selling Holders may request and doany and all other acts or 

 

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### things necessary or advisable to enable the disposition in suchjurisdictions of the Transfer Restricted Securities covered by the applicableRegistration Statement; *provided, however,*that neither the Company nor any Guarantor shall be required to register orqualify as a foreign corporation where it is not now so qualified or to takeany action that would subject it to the service of process in suits or totaxation, other than as to matters and transactions relating to theRegistration Statement, in any jurisdiction where it is not now so subject;

###  

### (xiii)         inconnection with any sale of Transfer Restricted Securities that will result insuch securities no longer being Transfer Restricted Securities, cooperate withthe Holders to facilitate the timely preparation and delivery of certificatesrepresenting Transfer Restricted Securities to be sold and not bearing anyrestrictive legends; and to register such Transfer Restricted Securities in suchdenominations and such names as the selling Holders may request at least twoBusiness Days prior to such sale of Transfer Restricted Securities;

###  

### (xiv)        useall commercially reasonable efforts to cause the disposition of the TransferRestricted Securities covered by the Registration Statement to be registeredwith or approved by such other governmental agencies or authorities as may benecessary to enable the seller or sellers thereof to consummate the dispositionof such Transfer Restricted Securities, subject to the proviso contained inclause (xii) above;

###  

### (xv)         provide aCUSIP number for all Transfer Restricted Securities not later than theeffective date of a Registration Statement covering such Transfer RestrictedSecurities and provide the Trustee under the Indenture with printedcertificates for the Transfer Restricted Securities which are in a formeligible for deposit with the Depository Trust Company;

###  

### (xvi)        otherwiseuse all commercially efforts to comply with all applicable rules and regulationsof the Commission, and make generally available to its security holders withregard to any applicable Registration Statement, as soon as practicable, aconsolidated earnings statement meeting the requirements of Rule 158 under theAct (which need not be audited) covering a twelve-month period beginning afterthe effective date of the Registration Statement (as such term is defined inparagraph (c) of Rule 158 under the Act);

###  

### (xvii)       causethe Indenture to be qualified under the TIA not later than the effective dateof the first Registration Statement required by this Agreement and, inconnection therewith, cooperate with the Trustee and the Holders to effect suchchanges to the Indenture as may be required for such Indenture to be soqualified in accordance with the terms of the TIA; and execute and use itscommercially reasonable efforts to cause the Trustee to execute, all documentsthat may be required to effect such changes and all other forms and documentsrequired to be filed with the Commission to enable such Indenture to be soqualified in a timely manner; and

 

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### (xviii)      providepromptly to each Holder, upon request, each document filed with the Commissionpursuant to the requirements of Section 13 or Section 15(d) of the ExchangeAct.

###  

## (d)           Restrictionson Holders.  Each Holder agrees byacquisition of a Transfer Restricted Security that, upon receipt of the noticereferred to in Section 6(c)(iii)(C) or any notice from the Company of theexistence of any fact of the kind described in Section 6(c)(iii)(D) hereof (ineach case, a “**Suspension Notice**”), suchHolder will forthwith discontinue disposition of Transfer Restricted Securitiespursuant to the applicable Registration Statement until (i) such Holder hasreceived copies of the supplemented or amended Prospectus contemplated bySection 6(c)(iv) hereof, or (ii) such Holder is advised in writing by theCompany that the use of the Prospectus may be resumed, and has received copiesof any additional or supplemental filings that are incorporated by reference inthe Prospectus (in each case, the “**Recommencement Date**”).  Each Holder receiving a Suspension Noticehereby agrees that it will either (i) destroy any Prospectuses, other thanpermanent file copies, then in such Holder’s possession which have beenreplaced by the Company with more recently dated Prospectuses or (ii) deliverto the Company (at the Company’s expense) all copies, other than permanent filecopies, then in such Holder’s possession of the Prospectus covering suchTransfer Restricted Securities that was current at the time of receipt of theSuspension Notice.  The time periodregarding the effectiveness of such Registration Statement set forth in Section3 or 4 hereof, as applicable, shall be extended by a number of days equal tothe number of days in the period from and including the date of delivery of theSuspension Notice to the Recommencement Date.

##  

# **SECTION 7.  **              REGISTRATION EXPENSES

# ** **

## (a)           Allexpenses incident to the Company’s and the Guarantor(s)’ performance of orcompliance with this Agreement will be borne by the Company, regardless ofwhether a Registration Statement becomes effective, including withoutlimitation: (i) all registration and filing fees and expenses; (ii) all fees andexpenses of compliance with federal securities and state Blue Sky or securitieslaws; (iii) all expenses of printing (including printing certificates for theExchange Notes to be issued in the Exchange Offer and printing ofProspectuses), messenger and delivery services and telephone; (iv) all fees anddisbursements of counsel for the Company and the Guarantor(s) and allreasonable fees and disbursements of not more than one counsel acting for theHolders of Transfer Restricted Securities and appointed in accordance withSection 7(b) hereof (*provided*that the fees of such counsel in connection with the Exchange OfferRegistration Statement shall not exceed $7,500 without the prior writtenconsent of the Company); and (v) all fees and disbursements of independentcertified public accountants of the Company and the Guarantor(s) (including theexpenses of any special audit and comfort letters required by or incident tosuch performance).

##  

The Company will, in any event, bear its and theGuarantor(s)’ internal expenses (including, without limitation, all salariesand expenses of its officers and employees performing legal or accountingduties), the expenses of any annual audit and the fees and expenses of anyPerson, including special experts, retained by the Company or the Guarantor(s).

 

## (b)           Inconnection with any Registration Statement required by this Agreement(including, without limitation, the Exchange Offer Registration Statement andthe Shelf

 

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## Registration Statement), the Company and the Guarantor(s) willreimburse the Initial Purchasers and the Holders of Transfer RestrictedSecurities who are validly tendering Initial Notes in the Exchange Offer and/orselling or reselling Initial Notes or Exchange Notes pursuant to the “Plan ofDistribution” contained in the Exchange Offer Registration Statement or theShelf Registration Statement, as applicable, for the reasonable fees anddisbursements of not more than one counsel, who shall be Latham & WatkinsLLP, unless another firm shall be chosen by the Holders of a majority inprincipal amount of the Transfer Restricted Securities for whose benefit suchRegistration Statement is being prepared.

##  

# **SECTION 8.  **              INDEMNIFICATION

# ** **

## (a)           TheCompany and the Guarantor(s) agree, jointly and severally, to indemnify andhold harmless each Holder, its directors, officers and each Person, if any, whocontrols such Holder (within the meaning of Section 15 of the Act or Section 20of the Exchange Act), from and against any and all losses, claims, damages,liabilities or judgments (including without limitation, any legal or otherexpenses incurred in connection with investigating or defending any matter,including any action that could give rise to any such losses, claims, damages,liabilities or judgments) to which they or any of the foregoing may becomesubject under the Act, the Exchange Act or otherwise, insofar as such losses,claims, damages, liabilities or judgments (or actions in respect thereof) ariseout of or are based upon any untrue statement or alleged untrue statement of amaterial fact contained in any Registration Statement, preliminary prospectusor Prospectus (or any amendment or supplement thereto), or arise out of or arebased upon any omission or alleged omission to state therein a material factrequired to be stated therein or necessary to make the statements therein, inthe light of the circumstances under which they were made, not misleading,except insofar as such losses, claims, damages, liabilities or judgments (oractions in respect thereof) arise out of or are based upon an untrue statementor omission or alleged untrue statement or omission that is made therein inreliance upon and in conformity with information relating to any of the Holdersfurnished in writing to the Company by or on behalf of any of the Holdersexpressly for use therein.  Thisindemnity agreement will be in addition to any liability that the Company andthe Guarantor(s) may otherwise have.

##  

## (b)           EachHolder agrees, severally and not jointly, to indemnify and hold harmless theCompany and the Guarantor(s), and their respective directors and officers, andeach Person, if any, who controls (within the meaning of Section 15 of the Actor Section 20 of the Exchange Act) the Company or the Guarantor(s) to the sameextent as the foregoing indemnity from the Company and the Guarantor(s) setforth in section (a) above, but only with reference to information relating tosuch Holder furnished in writing to the Company by or on behalf of such Holder expresslyfor use in any Registration Statement. In no event shall any Holder, its directors, officers or any Person whocontrols such Holder be liable or responsible for any amount in excess of theamount by which the total amount received by such Holder from its sale ofTransfer Restricted Securities pursuant to a Registration Statement exceeds theamount paid by such Holder for such Transfer Restricted Securities.  This indemnity will be in addition to anyliability that the Holders may otherwise have.

##  

## (c)           Incase any action shall be commenced or threatened involving any person inrespect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the“**indemnified party**”), theindemnified party shall promptly notify the person against whom such indemnity

 

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## may be sought (the “**indemnifyingparty**”) in writing (*provided*that the failure so to notify an indemnifying party shall relieve it from anyliability that it may have under this Section 8 solely to the extent that suchfailure to provide notice forfeits or materially prejudices any defenseotherwise available to such indemnifying party), and the indemnifying partyshall assume the defense of such action, including the employment of counselreasonably satisfactory to the indemnified party and the payment of all feesand expenses of such counsel, as incurred (except that in the case of anyaction in respect of which indemnity may be sought pursuant to both Sections8(a) and 8(b), a Holder shall not be required to assume the defense of suchaction pursuant to this Section 8(c), but may employ separate counsel andparticipate in the defense thereof, but the fees and expenses of such counsel,except as provided below, shall be at the expense of the Holder).  Any indemnified party shall have the right toemploy separate counsel in any such action and participate in the defensethereof, but the fees and expenses of such counsel shall be at the expense ofthe indemnified party unless (i) the employment of such counsel has beenspecifically authorized in writing by the indemnifying party, (ii) theindemnifying party has failed to assume the defense of such action or employcounsel reasonably satisfactory to the indemnified party or (iii) the namedparties to any such action (including any impleaded parties) include both theindemnified party and the indemnifying party, and the indemnified party hasbeen advised by such counsel that there may be one or more legal defensesavailable to it which are different from or additional to those available tothe indemnifying party (in which case the indemnifying party shall not have theright to assume the defense of such action on behalf of the indemnifiedparty).  In any such case, theindemnifying party shall not, in connection with any one action or separate butsubstantially similar or related actions in the same jurisdiction arising outof the same general allegations or circumstances, be liable for the fees andexpenses of more than one separate firm of attorneys (in addition to any localcounsel) for all indemnified parties and all such fees and expenses shall bereimbursed as they are incurred.  Suchfirm shall be designated in writing by a majority of the Holders, in the case ofthe parties indemnified pursuant to Section 8(a), and by the Company andGuarantor(s), in the case of parties indemnified pursuant to Section 8(b). Theindemnifying party shall indemnify and hold harmless the indemnified party fromand against any and all losses, claims, damages, liabilities and judgments byreason of any settlement of any action (i) effected with the written consent ofthe indemnifying party or (ii) effected without the written consent of theindemnifying party if (a) the settlement is entered into more than 20 BusinessDays after the indemnifying party received a request from the indemnified partyfor reimbursement for the fees and expenses of counsel (in any case where suchfees and expenses are at the expense of the indemnifying party), (b) suchindemnifying party received notice of the terms of such settlement at least 10Business Days prior to such settlement being entered into, and (c) suchindemnifying party failed to reimburse such indemnified party in accordancewith such request prior to the date of such settlement.   No indemnifying party shall, without theprior written consent of the indemnified party, effect any settlement orcompromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect ofwhich the indemnified party is or could have been a party and indemnity orcontribution may be or could have been sought hereunder by the indemnifiedparty, unless (x) such settlement, compromise or judgment (i) includes anunconditional release of the indemnified party from all liability arising outof such action and (ii) does not include a statement as to or an admission offault, culpability or a failure to act, by or on behalf of the indemnifiedparty, and (y) the indemnifying party confirms in writing its indemnificationobligations hereunder with respect to such settlement, compromise or judgment.

 

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##  

## (d)           Tothe extent that the indemnification provided for in this Section 8 isunavailable to an indemnified party in respect of any losses, claims, damages,liabilities or judgments referred to therein, then each indemnifying party, inlieu of indemnifying such indemnified party, shall contribute to the amountpaid or payable by such indemnified party as a result of such losses, claims,damages, liabilities or judgments (i) in such proportion as is appropriate toreflect the relative benefits received by the Company and the Guarantor(s), onthe one hand, and the Holders, on the other hand, from their sale of TransferRestricted Securities or (ii) if the allocation provided by clause 8(d)(i)above is not permitted by applicable law, in such proportion as is appropriateto reflect not only the relative benefits referred to in clause 8(d)(i) abovebut also the relative fault of the Company and the Guarantor(s), on the onehand, and of the Holder, on the other hand, in connection with the statementsor omissions which resulted in such losses, claims, damages, liabilities orjudgments, as well as any other relevant equitable considerations.  The relative fault of the Company and theGuarantor(s), on the one hand, and of the Holder, on the other hand, shall bedetermined by reference to, among other things, whether the untrue or allegeduntrue statement of a material fact or the omission or alleged omission tostate a material fact relates to information supplied by or on behalf of theCompany or such Guarantor, on the one hand, or by or on behalf of the Holder,on the other hand, and the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent such statement or omission.

##  

The Company, the Guarantor(s) and each Holder agreethat it would not be just and equitable if contribution pursuant to thisSection 8(d) were determined by pro rata allocation (even if the Holders weretreated as one entity for such purpose) or by any other method of allocationthat does not take account of the equitable considerations referred to in theimmediately preceding paragraph.  Theamount paid or payable by an indemnified party as a result of the losses,claims, damages, liabilities or judgments referred to in the immediatelypreceding paragraph shall be deemed to include, subject to the limitations setforth above, any legal or other expenses reasonably incurred by such indemnifiedparty in connection with investigating or defending any matter, including anyaction that could have given rise to such losses, claims, damages, liabilitiesor judgments.  Notwithstanding theprovisions of this Section 8, in no event shall any Holder, its directors, itsofficers or any Person, if any, who controls such Holder be required tocontribute, in the aggregate, any amount in excess of the amount by which thetotal amount received by such Holder from its sale of Transfer RestrictedSecurities pursuant to a Registration Statement exceeds (i) the amount paid bysuch Holder for such Transfer Restricted Securities plus (ii) the amount of anydamages that such Holder has otherwise been required to pay by reason of suchuntrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the Act) shall beentitled to contribution from any person who was not guilty of such fraudulentmisrepresentation.  The Holders’obligations to contribute pursuant to this Section 8(d) are several inproportion to the respective principal amount of Transfer Restricted Securitiesheld by each Holder hereunder and not joint.

 

# **SECTION 9.  **              RULE 144A AND RULE 144

# ** **

The Company and each Guarantor agrees with eachHolder, for so long as any Transfer Restricted Securities remain outstandingand during any period in which the Company or such Guarantor (i) is not subjectto Section 13 or 15(d) of the Exchange Act, to make available, upon

 

17

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request of any Holder, tosuch Holder or beneficial owner of Transfer Restricted Securities in connectionwith any sale thereof and any prospective purchaser of such Transfer RestrictedSecurities designated by such Holder or beneficial owner, the informationrequired by Rule 144A(d)(4) under the Act in order to permit resales of suchTransfer Restricted Securities pursuant to Rule 144A under the Act, and (ii) issubject to Section 13 or 15(d) of the Exchange Act, to make all filingsrequired thereby in a timely manner in order to permit resales of such TransferRestricted Securities pursuant to Rule 144.

 

# **SECTION 10.  **            MISCELLANEOUS

# ** **

## (a)           Remedies.  The Company and the Guarantor(s) acknowledgeand agree that any failure by the Company and/or the Guarantor(s) to complywith their respective obligations under Sections 3 and 4 hereof may result inmaterial irreparable injury to the Initial Purchasers or the Holders for whichthere is no adequate remedy at law, that it will not be possible to measuredamages for such injuries precisely and that, in the event of any such failure,the Initial Purchasers or any Holder may obtain such relief as may be requiredto specifically enforce the Company’s and the Guarantor(s)’ obligations underSections 3 and 4 hereof.  The Company andthe Guarantor(s) further agree to waive the defense in any action for specificperformance that a remedy at law would be adequate.

##  

## (b)           NoInconsistent Agreements.  Neither theCompany nor any Guarantor will, on or after the date of this Agreement, enterinto any agreement with respect to its securities that is inconsistent with therights granted to the Holders in this Agreement or otherwise conflicts with theprovisions hereof.  Neither the Companynor any Guarantor has previously entered into, nor is currently a party to, anyagreement granting any registration rights with respect to its securities toany Person that would require such securities to be included in anyRegistration Statement filed hereunder. The rights granted to the Holders hereunder do not in any way conflictwith and are not inconsistent with the rights granted to the holders of theCompany’s and the Guarantor(s)’ securities under any agreement in effect on thedate hereof.

##  

## (c)           Amendmentsand Waivers.  The provisions of thisAgreement may not be amended, modified or supplemented, and waivers or consentsto or departures from the provisions hereof may not be given unless required byapplicable law or (i) in the case of Section 5 hereof and this Section10(c)(i), the Company has obtained the written consent of Holders of alloutstanding Transfer Restricted Securities and (ii) in the case of all otherprovisions hereof, the Company has obtained the written consent of Holders of amajority of the outstanding principal amount of Transfer Restricted Securities(excluding Transfer Restricted Securities held by the Company or itsAffiliates).  Notwithstanding theforegoing, a waiver or consent to departure from the provisions hereof thatrelates exclusively to the rights of Holders whose Transfer RestrictedSecurities are being tendered pursuant to the Exchange Offer, and that does notaffect directly or indirectly the rights of other Holders whose TransferRestricted Securities are not being tendered pursuant to such Exchange Offer,may be given by the Holders of a majority of the outstanding principal amountof Transfer Restricted Securities subject to such Exchange Offer.

##  

## (d)           AdditionalGuarantors.  The Company shall causeany of its Restricted Subsidiaries (as defined in the Indenture) that becomes,prior to the consummation of the 

 

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##  

## Exchange Offer, aGuarantor in accordance with the terms and provisions of the Indenture tobecome a party to this Agreement as a Guarantor.

##  

## (e)           ThirdParty Beneficiary.  The Holders shallbe third party beneficiaries to the agreements made hereunder between theCompany and the Guarantor(s), on the one hand, and the Initial Purchasers, onthe other hand, and shall have the right to enforce such agreements directly tothe extent they may deem such enforcement necessary or advisable to protect itsrights or the rights of Holders hereunder.

##  

## (f)            Notices.  All notices and other communications providedfor or permitted hereunder shall be made in writing by hand-delivery,telecopier or air courier guaranteeing overnight delivery:

##  

### (i)            if to aHolder, at the address set forth on the records of the Registrar under theIndenture, with a copy to the Registrar under the Indenture; and

###  

### (ii)           if to theCompany or the Guarantor(s):

 

UbiquiTel Operating Company

One West Elm Street, Suite 400

Conshohocken, Pennsylvania 19428

Telecopier No.: (610) 832-1076

Attention: Patricia E. Knese, Vice President andGeneral Counsel

 

With a copy to:

 

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Telecopier No.: (305) 961-5642

Attention: Andrew E. Balog, Esq.

 

All such notices and communications shall be deemed tohave been duly given: at the time delivered by hand, if personally delivered;when receipt acknowledged, if telecopied; and on the next Business Day, iftimely delivered to an air courier guaranteeing overnight delivery.

 

Copies of all such notices, demands or othercommunications shall be concurrently delivered by the Person giving the same tothe Trustee at the address specified in the Indenture.

 

## (g)           Successorsand Assigns.  This Agreement shallinure to the benefit of and be binding upon the successors and assigns of eachof the parties, including without limitation and without the need for anexpress assignment, subsequent Holders; *provided* thatnothing herein shall be deemed to permit any assignment, transfer or otherdisposition of Transfer Restricted Securities in violation of the terms hereofor of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer RestrictedSecurities in any manner, whether by operation of law or otherwise, suchTransfer Restricted Securities shall be held subject to all of the terms of thisAgreement, and by taking and holding such Transfer Restricted Securities such

 

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##  

## Person shall be conclusively deemed to have agreed tobe bound by and to perform all of the terms and provisions of this Agreement,including the restrictions on resale set forth in this Agreement and, ifapplicable, the Purchase Agreement, and such Person shall be entitled toreceive the benefits hereof.

##  

## (h)           Counterparts.  This Agreement may be executed in any numberof counterparts and by the parties hereto in separate counterparts, each ofwhich when so executed shall be deemed to be an original and all of which takentogether shall constitute one and the same agreement.

##  

## (i)            Headings.  The headings in this Agreement are forconvenience of reference only and shall not limit or otherwise affect themeaning hereof.

##  

## (j)            GoverningLaw.  THIS AGREEMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.

##  

## (k)           Severability.  In the event that any one or more of theprovisions contained herein, or the application thereof in any circumstance, isheld invalid, illegal or unenforceable, the validity, legality andenforceability of any such provision in every other respect and of theremaining provisions contained herein shall not be affected or impairedthereby.

##  

## (l)            EntireAgreement.  This Agreement isintended by the parties as a final expression of their agreement and intendedto be a complete and exclusive statement of the agreement and understanding ofthe parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,warranties or undertakings, other than those set forth or referred to hereinwith respect to the registration rights granted with respect to the TransferRestricted Securities.  This Agreementsupersedes all prior agreements and understandings between the parties withrespect to such subject matter.

 

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IN WITNESS WHEREOF, the parties have executed thisAgreement as of the date first written above.

 
|   | UBIQUITEL  OPERATING COMPANY |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   |   |
|   |                         | Name: | James  J. Volk |
|   |                         | Title: | Chief  Financial Officer |
|   |                         |   |   |
|   |                         |   |   |
|   | UBIQUITEL  INC.              |
|   |                         |
|   |                         |   |   |
|   | By:                          |   |   |
|   |                         | Name: | James  J. Volk |
|   |                         | Title: | Chief  Financial Officer |
|        |                              |  |  |  |  |

 

 

BEAR, STEARNS & CO. INC.

 

 
| By:                             |       |       |
|---------------------------------|------------|------------|
|                            | Name:      |       |
|                            | Title:     |       |
| ** **                      | ** ** | ** ** |
| ** **                      | ** ** | ** ** |
| BANC  OF AMERICA SECURITIES LLC |       |
|                            |       |
|                            |       |       |
| By:                             |       |       |
|                            | Name:      |       |
|                            | Title:     |       |

 

----