**EXHIBIT 10.4**

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**REGISTRATION RIGHTS AGREEMENT**

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**Datedas of February 23, 2004**

**byand among**

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**UBIQUITELOPERATING COMPANYUBIQUITEL INC.**

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**and**

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

**CITIGROUPGLOBAL MARKETS INC.**

**BANCOF AMERICA SECURITIES LLC**

 

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This RegistrationRights Agreement (this “**Agreement**”) is made and entered into asof February 23, 2004, by and among UbiquiTel Operating Company, a Delawarecorporation (the “**Company**”), UbiquiTel Inc. (togetherwith any new party to this Agreement pursuant to Section 6(d) hereof, eacha “**Guarantor**”and, together, the “**Guarantors**”) and Bear, Stearns & Co. Inc., Citigroup Global Markets Inc. and Banc ofAmerica Securities LLC (each an “**Initial Purchaser**” and, together, the “**InitialPurchasers**”), each of whom has agreed to purchase the Company’s97/8% Senior Notes due 2011(the “**InitialNotes**”) pursuant to the Purchase Agreement (as defined below).

 

This Agreement ismade pursuant to the Purchase Agreement, dated February 12, 2004 (the “**PurchaseAgreement**”), by and among the Company, the Guarantor and theInitial Purchasers.  In order to inducethe Initial Purchasers to purchase the Initial Notes, the Company has agreed toprovide the registration rights set forth in this Agreement.  The execution and delivery of this Agreementis a condition to the obligations of the Initial Purchasers set forth inSection 10 of the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have themeaning assigned to them in the Indenture, dated as of February 23, 2004,among the Company, the Guarantor and The Bank of New York, as trustee, relatingto the Initial Notes and the Exchange Notes (the “**Indenture**”). 

 

The parties herebyagree as follows:

 

# **SECTION 1.**        DEFINITIONS

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As used in thisAgreement, the following capitalized terms 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 deliveryby the Company to the Registrar under the Indenture of Exchange Notes in thesame aggregate principal amount as the aggregate principal amount of

 

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Initial Notes validly tendered by Holders thereof and accepted by theCompany pursuant to the Exchange Offer.

 

**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 ofa principal amount of Exchange Notes (which shall be registered pursuant to theExchange Offer Registration Statement) equal to the outstanding principalamount of Initial Notes that are validly tendered by such Holders and acceptedby the Company 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, asamended or supplemented by any prospectus supplement and by all otheramendments thereto, including post-effective amendments, and all materialincorporated by reference 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 Companyand the Guarantor(s) relating to (a) an offering of Exchange Notes pursuant toan Exchange 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.

 

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**Transfer Restricted Securities**:  Each Initial Note until the earliest tooccur of (a) the date on which such Initial Note has been validly exchanged inthe Exchange Offer by a Person 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 Act anddisposed 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

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

 

# **SECTION 3.**        REGISTEREDEXCHANGE OFFER

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## (a)           Unless the ExchangeOffer shall not be permitted by applicable law or Commission policy (after theprocedures set forth in Section 6(a)(i) below have been complied with),the Company and the Guarantor(s) shall (i) cause the Exchange OfferRegistration Statement to be filed with the Commission no later than 90 daysafter the Closing Date or, if such 90th day is not a Business Day,on the next succeeding Business Day (such 90th day or next succeeding BusinessDay being the **“Filing Deadline”**), (ii) use all commerciallyreasonable efforts to cause such Exchange Offer Registration Statement tobecome effective no later than 180 days after the Closing Date or, if such 180thday is not a Business Day, on the next succeeding Business Day (such 180th dayor next succeeding Business Day being the “**Effectiveness Deadline**”), (iii) inconnection with the foregoing, (A) file all pre-effective amendments to suchExchange Offer Registration Statement as may be necessary in order to cause itto become effective, (B) file, if applicable, a post-effective amendment tosuch Exchange Offer Registration Statement pursuant to Rule 430A under the Actand (C) cause all necessary filings, if any, in connection with theregistration and qualification of the Exchange Notes to be made under the BlueSky laws of such jurisdictions as are necessary to permit Consummation of theExchange Offer, and (iv) upon the effectiveness of such Exchange OfferRegistration Statement, commence and Consummate the Exchange Offer.  The Exchange Offer shall be on theappropriate form permitting (i) registration of the Exchange Notes to beoffered 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.

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## (b)           The Company and theGuarantor(s) shall use all commercially reasonable efforts to cause theExchange Offer Registration Statement to be effective continuously, and shallkeep the Exchange Offer open for a period of not less than the minimum periodrequired under applicable federal and state securities laws to Consummate the ExchangeOffer; *provided,*

 

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*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 securitieslaws.  No securities other than theExchange Notes shall be included in the Exchange Offer RegistrationStatement.  The Company and theGuarantor(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**”).

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## (c)           The Company shallinclude a “Plan of Distribution” section in the Prospectus contained inthe Exchange Offer Registration Statement and indicate therein that anyBroker-Dealer who holds Transfer Restricted Securities that were acquired forthe account of such Broker-Dealer as a result of market-making activities orother trading activities (other than Initial Notes acquired directly from theCompany or any Affiliate of the Company), may exchange such Transfer RestrictedSecurities pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain all otherinformation with respect to such sales by such Broker-Dealers that theCommission may require in order to permit such sales pursuant thereto, but such“Plan of Distribution” shall not name any such Broker-Dealer or disclose theamount of Transfer Restricted Securities held by any such Broker-Dealer, exceptto the extent required by the Commission as a result of a change in policy,rules or regulations after the date of this Agreement.  See the Shearman & Sterlingno-action letter (available July 2, 1993).

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Because suchBroker-Dealer may be deemed to be an “underwriter” within the meaning of theAct and must, therefore, deliver a prospectus meeting the requirements of theAct in connection with its initial sale of any Exchange Notes received by suchBroker-Dealer in the Exchange Offer, the Company and Guarantor(s) shall permitthe use of the Prospectus contained in the Exchange Offer RegistrationStatement by such Broker-Dealer to satisfy such prospectus deliveryrequirement.  To the extent necessary toensure that the Prospectus contained in the Exchange Offer RegistrationStatement is available for sales of Exchange Notes by Broker-Dealers, theCompany and the Guarantor(s) agree to use all commercially reasonable effortsto keep the Exchange Offer Registration Statement continuously effective,supplemented, amended and current as required by and subject to the provisionsof Sections 6(a) and (c) hereof and in conformity with the requirements of thisAgreement, the Act and the policies, rules and regulations of the Commission asannounced from time to time, for a period of one year from the ConsummationDeadline or such shorter period as will terminate when all Transfer RestrictedSecurities covered by such Registration Statement have been sold pursuantthereto.  The Company and the Guarantor(s)shall provide sufficient copies of the latest version of such Prospectus tosuch Broker-Dealers, promptly upon request, and in no event later than one dayafter such request, at any time during such period.

 

# **SECTION 4.**        SHELFREGISTRATION

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## (a)           Shelf Registration.  If (i) the Company and the Guarantor(s) arenot (A) required to file the Exchange Offer Registration Statement or (B)permitted to Consummate the Exchange Offer because the Exchange Offer is notpermitted by applicable law or Commission policy (after the Company and theGuarantor(s) have complied with the procedures set forth in Section 

 

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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 Commission policy from participating in theExchange Offer, (B) such Holder may not resell the Exchange Notes acquired byit in the Exchange Offer to the public without delivering a prospectus and theProspectus contained in the Exchange Offer Registration Statement is notappropriate or available for such resales by such Holder or (C) such Holder isa Broker-Dealer and holds Initial Notes acquired directly from the Company or anyof its Affiliates, then the Company and the Guarantor(s) shall:

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(x) use allcommercially reasonable efforts on or prior to 30 days (or, if such 30thday is not a Business Day, on the next succeeding Business Day) after theearlier of (i) the date as of which the Company determines that the ExchangeOffer Registration Statement will not be or cannot be, as the case may be,filed as a result of clause (a)(i) above and (ii) the date on which the Companyreceives the notice specified in clause (a)(ii) above (30 days (or nextsucceeding Business Day) after such earlier date, the “**Filing Deadline**”), tofile a shelf registration statement pursuant to Rule 415 under the Act (whichmay be an amendment to the Exchange Offer Registration Statement (the “**ShelfRegistration Statement**”)), relating to all Transfer RestrictedSecurities, and 

 

(y) shall use allcommercially reasonable efforts to cause such Shelf Registration Statement tobecome effective on or prior to 60 days (or, if such 60th day is nota Business Day, on the next succeeding Business Day) after the Filing Deadlinefor the Shelf Registration Statement (such 60th day (or next succeedingBusiness Day) the “**Effectiveness Deadline**”).  

 

If, after theCompany and the Guarantor(s) have filed an Exchange Offer RegistrationStatement that satisfies the requirements of Section 3(a) above, theCompany and the Guarantor(s) are required to file and make effective a ShelfRegistration Statement solely because the Exchange Offer is not permitted underapplicable federal law (i.e., clause (a)(i)(B) above), then the filing of theExchange Offer Registration Statement shall be deemed to satisfy therequirements of clause (x) above; *provided* that, in such event, the Companyand the Guarantor(s) shall remain obligated to meet the Effectiveness Deadlineset forth in clause (y).

 

To the extentnecessary to ensure that the Shelf Registration Statement is available forsales of Transfer Restricted Securities by the Holders thereof entitled to thebenefit of this Section 4(a) and the other securities required to beregistered therein pursuant to Section 6(b)(ii) hereof, the Company andthe Guarantor(s) shall use all commercially reasonable efforts to keep anyShelf Registration Statement required by this Section 4(a) continuously effective,supplemented, amended and current as required by and subject to the provisionsof Sections 6(b) and (c) hereof and in conformity with the requirements of thisAgreement, the Act and the policies, rules and regulations of the Commission asannounced from time to time, until the expiration of the period referred to inRule 144(k), or such shorter period as will terminate when all TransferRestricted Securities covered by such Shelf Registration Statement have beensold pursuant thereto.

 

## (b)           Provision by Holdersof Certain Information in Connection with the Shelf Registration Statement.  No Holder may include any of its TransferRestricted Securities in any Shelf Registration Statement pursuant to thisAgreement unless and until such Holder furnishes

 

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to the Company in writing, within 20 days after receipt of a requesttherefor, the information specified in Item 507 or 508 of Regulation S-K, asapplicable, of the Act for use in connection with any Shelf RegistrationStatement or Prospectus or preliminary prospectus included therein.  No Holder shall be entitled to liquidateddamages pursuant to Section 5 hereof unless and until such Holder shallhave provided all such information. Each selling Holder agrees to promptly furnish additional informationrequired to be disclosed in order to make the information previously furnishedto the Company by such Holder not materially misleading.

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# **SECTION 5.**        LIQUIDATEDDAMAGES

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If (i) anyRegistration Statement required by this Agreement is not filed with theCommission on or prior to the applicable Filing Deadline, (ii) any suchRegistration Statement has not been declared effective by the Commission on orprior to the applicable Effectiveness Deadline, (iii) the Exchange Offer hasnot been Consummated on or prior to 30 Business Days after the EffectivenessDeadline with respect to the Exchange Offer Registration Statement or (iv) anyRegistration Statement required by this Agreement is filed and declared effectivebut shall thereafter cease to be effective or usable for its intended purpose(each such event referred to in clauses (i) through (iv), a **“RegistrationDefault”**), then the Company and the Guarantor(s) hereby jointlyand severally agree to pay to each Holder affected thereby liquidated damagesin an amount equal to $0.05 per week per $1,000 in principal amount of TransferRestricted Securities held by such Holder for each week or portion thereof thatthe Registration Default continues for the first 90-day period immediatelyfollowing the occurrence of such Registration Default.  The amount of the liquidated damages shallincrease by an additional $0.05 per week per $1,000 in principal amount ofTransfer Restricted Securities with respect to each subsequent 90-day perioduntil all Registration Defaults have been cured, up to a maximum amount ofliquidated damages of $0.50 per week per $1,000 in principal amount of TransferRestricted Securities; *provided* that the Company and theGuarantor(s) shall in no event be required to pay liquidated damages for morethan one Registration Default at any given time.  Notwithstanding anything to the contrary set forth herein, (1)upon filing of the Exchange Offer Registration Statement (and/or, ifapplicable, the Shelf Registration Statement), in the case of clause (i) above,(2) upon the effectiveness of the Exchange Offer Registration Statement(and/or, if applicable, the Shelf Registration Statement), in the case ofclause (ii) above, (3) upon Consummation of the Exchange Offer, in the case ofclause (iii) above, or (4) upon the filing of a post-effective amendment to theRegistration Statement or an additional Registration Statement that causes theExchange Offer Registration Statement (and/or, if applicable, the Shelf RegistrationStatement) to again be declared effective or made usable in the case of clause(iv) above, the liquidated damages payable with respect to the TransferRestricted Securities as a result of such clause (i), (ii), (iii) or (iv), asapplicable, shall cease. Notwithstanding the foregoing, in the event of a Registration Default ofthe type described under clause (iv) above, the liquidated damages payable withrespect to the Transfer Restricted Securities shall cease to accrue thereonupon the expiration of the period referred to in Rule 144(k) under the Act.

 

All accruedliquidated damages shall be paid to the Holders entitled thereto, in the mannerprovided for the payment of interest in the Indenture, on each Interest PaymentDate, as more fully set forth in the Indenture and the Notes.  Notwithstanding the fact that any securitiesfor which liquidated damages are due cease to be Transfer RestrictedSecurities, all obligations of the Company and the Guarantor(s) to payliquidated damages with respect to securities shall

 

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survive until such time as such obligations with respect to suchsecurities shall have been satisfied in full.

 

# **SECTION 6.**        REGISTRATIONPROCEDURES

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## (a)           Exchange OfferRegistration 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:

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### (i)            If,following the date hereof there has been announced a change in Commission policywith 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 OfferRegistration Statement) to the effect that (A) it is not an Affiliate of theCompany, (B) it is not engaged in, and does not intend to engage in, and has noarrangement or understanding with any person to participate in, a distributionof the Exchange Notes to be issued in the Exchange Offer and (C) it isacquiring the Exchange Notes in its ordinary course of business.  As a condition to its participation in theExchange Offer each Holder using the Exchange Offer to participate in adistribution of the Exchange Notes shall acknowledge and agree that, if theresales are of Exchange Notes obtained by such Holder in exchange for InitialNotes acquired directly from the Company or an Affiliate thereof, it (1) couldnot, under Commission policy as in effect on the date of this Agreement, relyon the position of the Commission enunciated in Morgan Stanley and Co., Inc.(available June 5, 1991) and Exxon Capital Holdings Corporation(available May 13, 1988), as interpreted in the Commission’s letter

 

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### to Shearman& Sterling dated July 2, 1993, and similar no-action letters(including, if applicable, any no-action letter obtained pursuant to clause (i)above), and (2) must comply with the registration and prospectus deliveryrequirements of the Act in connection with a secondary resale transaction andthat such a secondary resale transaction must be covered by an effectiveregistration statement containing the selling security holder informationrequired by Item 507 or 508, as applicable, of Regulation 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 theCommission’s letter to Shearman & Sterling dated July 2, 1993,and, if applicable, 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)           Shelf RegistrationStatement. In connection with the Shelf Registration Statement, the Companyand 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 pursuantthereto the Company and the Guarantor(s) will prepare and file with theCommission a Registration Statement relating to the registration on anyappropriate form under the Act, which form shall be available for the sale ofthe Transfer Restricted Securities in accordance with the intended method ormethods of distribution thereof within the time periods and otherwise inaccordance with the 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)           General Provisions.  In connection with any RegistrationStatement and any related Prospectus required by this Agreement, the Companyand 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 material factnecessary 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 inSection 3 or 4 hereof, as the case may be; cause the Prospectus to besupplemented by any required Prospectus supplement, and as so supplemented tobe filed pursuant to Rule 424 under the Act, and to comply fully with Rules424, 430A and 462, as applicable, under the Act in a timely manner; and complywith the provisions of the Act with respect to the disposition of allsecurities covered by such Registration Statement during the applicable periodin accordance with the intended method or methods of distribution by thesellers thereof set forth in such Registration Statement or supplement to theProspectus;

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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 for additionalinformation relating thereto, (C) of the issuance by the Commission of any stoporder suspending the effectiveness of the Registration Statement under the Actor of the suspension by any state securities commission of the qualification ofthe Transfer Restricted Securities for offering or sale in any jurisdiction, orthe initiation of any proceeding for any of the preceding purposes, and (D) ofthe existence of any fact or the happening of any event that makes anystatement of a material fact made in the Registration Statement, theProspectus, any amendment or supplement thereto or any document incorporated byreference therein untrue, or that requires the making of any additions to orchanges in the Registration Statement in order to make the statements thereinnot misleading, or that requires the making of any additions to or changes inthe Prospectus in order to make the statements therein, in the light of thecircumstances under which they were made, not misleading.  If at any time the Commission shall issueany stop order suspending the effectiveness of the Registration Statement, orany state securities commission or other regulatory authority shall issue anorder suspending the qualification or exemption from qualification of theTransfer Restricted Securities under state securities or Blue Sky laws,

 

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### 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 bySection 6(c)(iii)(D) above shall exist or have occurred, prepare asupplement or post-effective amendment to the Registration Statement or relatedProspectus or any document incorporated therein by reference or file any otherrequired document so that, as thereafter delivered to the purchasers ofTransfer Restricted Securities, the Prospectus will not contain an untruestatement of a material fact or omit to state any material fact necessary tomake the statements therein, in the light of the circumstances under which theywere made, not misleading;

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### (v)           furnishto each 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 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)           furnishto each 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:

####  

##### (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 

 

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##### the effect thatsuch counsel has participated in conferences with officers and otherrepresentatives of the Company and the Guarantor(s) and representatives of theindependent public accountants for the Company and the Guarantor(s) and haveconsidered the matters required to be stated therein and the statementscontained therein, although (i) such counsel is not passing upon and does notassume responsibility for the accuracy, completeness or fairness of suchstatements, and (ii) such counsel has not independently verified the accuracy,completeness or fairness of such statements; and that such counsel advisesthat, on the basis of the foregoing (relying as to materiality to the extentsuch counsel deems appropriate upon the statements of officers and otherrepresentatives of the Company and the Guarantor(s)) and without independentcheck or verification), no facts came to such counsel’s attention that causedsuch counsel to believe that the applicable Registration Statement, at the timesuch Registration Statement or any post-effective amendment thereto becameeffective and, in the case of the Exchange Offer Registration Statement, as ofthe date of Consummation of the Exchange Offer, contained an untrue statementof a material fact or omitted to state a material fact required to be statedtherein or necessary to make the statements therein not misleading, or that theProspectus contained in such Registration Statement as of its date and, in thecase of the opinion dated the date of Consummation of the Exchange Offer, as ofthe date of Consummation, contained an untrue statement of a material fact oromitted to state a material fact necessary in order to make the statements therein,in the light of the circumstances under which they were made, notmisleading.  Without limiting theforegoing, such counsel may state further that such counsel assumes noresponsibility for, and has not independently verified, the accuracy,completeness or fairness of the financial statements, notes and schedules andother financial data included in any Registration Statement contemplated bythis Agreement or the related Prospectus; 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 to underwritersin connection with underwritten offerings, and affirming the matters set forthin the comfort letters delivered pursuant to Section 10(h) of the PurchaseAgreement; 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);

 

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### (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 things necessary or advisable to enable thedisposition in such jurisdictions of the Transfer Restricted Securities coveredby the applicable Registration Statement; *provided, however,* that neither theCompany nor any Guarantor shall be required to register or qualify as a foreigncorporation where it is not now so qualified or to take any action that wouldsubject it to the service of process in suits or to taxation, other than as tomatters and transactions relating to the Registration Statement, in anyjurisdiction 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 insuch denominations and such names as the selling Holders may request at leasttwo Business 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 andregulations of the Commission, and make generally available to its securityholders with regard to any applicable Registration Statement, as soon aspracticable, a consolidated earnings statement meeting the requirements of Rule158 under the Act (which need not be audited) covering a twelve-month periodbeginning after the effective date of the Registration Statement (as such termis defined in paragraph (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

 

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### and all otherforms and documents required to be filed with the Commission to enable suchIndenture to be so qualified in a timely manner; and

###  

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

###  

## (d)           Restrictions onHolders.  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(in each case, a “**Suspension Notice**”), such Holder willforthwith discontinue disposition of Transfer Restricted Securities pursuant tothe applicable Registration Statement until (i) such Holder has received copiesof the supplemented or amended Prospectus contemplated by Section 6(c)(iv)hereof, or (ii) such Holder is advised in writing by the Company that the useof the Prospectus may be resumed, and has received copies of any additional orsupplemental filings that are incorporated by reference in the Prospectus (ineach 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 inSection 3 or 4 hereof, as applicable, shall be extended by a number ofdays equal to the number of days in the period from and including the date ofdelivery of the Suspension Notice to the Recommencement Date.

##  

# **SECTION 7.**        REGISTRATIONEXPENSES

# ** **

## (a)           All expenses incidentto the Company’s and the Guarantor(s)’ performance of or compliance with thisAgreement will be borne by the Company, regardless of whether a RegistrationStatement becomes effective, including without limitation: (i) all registrationand filing fees and expenses; (ii) all fees and expenses of compliance withfederal securities and state Blue Sky or securities laws; (iii) all expenses ofprinting (including printing certificates for the Exchange Notes to be issuedin the Exchange Offer and printing of Prospectuses), messenger and deliveryservices and telephone; (iv) all fees and disbursements of counsel for theCompany and the Guarantor(s) and all reasonable fees and disbursements of notmore than one counsel acting for the Holders of Transfer Restricted Securitiesand appointed in accordance with Section 7(b) hereof (*provided* that the fees of such counsel inconnection with the Exchange Offer Registration Statement shall not exceed$7,500 without the prior written consent of the Company); and (v) all fees anddisbursements of independent certified public accountants of the Company andthe Guarantor(s) (including the expenses of any special audit and comfortletters required by or incident to such performance).

##  

The Company will,in any event, bear its and the Guarantor(s)’ internal expenses (including,without limitation, all salaries and expenses of its officers and employeesperforming legal or accounting duties), the expenses of any annual audit andthe fees and expenses of any Person, including special experts, retained by theCompany or the Guarantor(s).

 

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## (b)           In connection with anyRegistration Statement required by this Agreement (including, withoutlimitation, the Exchange Offer Registration Statement and the ShelfRegistration Statement), the Company and the Guarantor(s) will reimburse theInitial Purchasers and the Holders of Transfer Restricted Securities who arevalidly tendering Initial Notes in the Exchange Offer and/or selling orreselling 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)           The Company and theGuarantor(s) agree, jointly and severally, to indemnify and hold harmless eachHolder, its directors, officers and each Person, if any, who controls suchHolder (within the meaning of Section 15 of the Act or Section 20 of theExchange 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)           Each Holder agrees,severally and not jointly, to indemnify and hold harmless the Company and theGuarantor(s), and their respective directors and officers, and each Person, ifany, who controls (within the meaning of Section 15 of the Act or Section 20of the Exchange Act) the Company or the Guarantor(s) to the same extent as theforegoing indemnity from the Company and the Guarantor(s) set forth insection (a) above, but only with reference to information relating to suchHolder furnished in writing to the Company by or on behalf of such Holderexpressly for use in any Registration Statement.  In no event shall any Holder, its directors, officers or anyPerson who controls such Holder be liable or responsible for any amount inexcess of the amount by which the total amount received by such Holder from itssale of Transfer Restricted Securities pursuant to a Registration Statementexceeds the amount paid by such Holder for such Transfer RestrictedSecurities.  This indemnity will be inaddition to any liability that the Holders may otherwise have.

 

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## (c)           In case any actionshall be commenced or threatened involving any person in respect of whichindemnity may be sought pursuant to Section 8(a) or 8(b) (the “**indemnifiedparty**”), the indemnified party shall promptly notify the personagainst whom such indemnity may be sought (the “**indemnifying party**”)in writing (*provided* that thefailure so to notify an indemnifying party shall relieve it from any liabilitythat 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 rightto employ 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 indemnified party).  In any such case, the indemnifying partyshall not, in connection with any one action or separate but substantiallysimilar or related actions in the same jurisdiction arising out of the samegeneral allegations or circumstances, be liable for the fees and expenses ofmore than one separate firm of attorneys (in addition to any local counsel) forall indemnified parties and all such fees and expenses shall be reimbursed asthey are incurred.  Such firm shall bedesignated in writing by a majority of the Holders, in the case of the partiesindemnified pursuant to Section 8(a), and by the Company and Guarantor(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)

 

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does not include a statement as to or an admission of fault,culpability or a failure to act, by or on behalf of the indemnified party, and(y) the indemnifying party confirms in writing its indemnification obligationshereunder with respect to such settlement, compromise or judgment.

##  

## (d)           To the extent that theindemnification provided for in this Section 8 is unavailable to anindemnified party in respect of any losses, claims, damages, liabilities orjudgments referred to therein, then each indemnifying party, in lieu ofindemnifying such indemnified party, shall contribute to the amount paid orpayable by such indemnified party as a result of such losses, claims, damages,liabilities or judgments (i) in such proportion as is appropriate to reflectthe relative benefits received by the Company and the Guarantor(s), on the onehand, 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 oromission.  

##  

The Company, theGuarantor(s) and each Holder agree that it would not be just and equitable ifcontribution pursuant to this Section 8(d) were determined by pro rataallocation (even if the Holders were treated as one entity for such purpose) orby any other method of allocation that does not take account of the equitableconsiderations referred to in the immediately preceding paragraph.  The amount paid or payable by an indemnifiedparty as a result of the losses, claims, damages, liabilities or judgmentsreferred to in the immediately preceding paragraph shall be deemed to include,subject to the limitations set forth above, any legal or other expensesreasonably incurred by such indemnified party in connection with investigatingor defending any matter, including any action that could have given rise tosuch losses, claims, damages, liabilities or judgments.  Notwithstanding the provisions of thisSection 8, in no event shall any Holder, its directors, its officers orany Person, if any, who controls such Holder be required to contribute, in theaggregate, any amount in excess of the amount by which the total amountreceived by such Holder from its sale of Transfer Restricted Securitiespursuant to a Registration Statement exceeds (i) the amount paid by such Holderfor such Transfer Restricted Securities plus (ii) the amount of any damagesthat such Holder has otherwise been required to pay by reason of such untrue oralleged untrue statement or omission or alleged omission.  No person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the Act) shallbe entitled to contribution from any person who was not guilty of suchfraudulent misrepresentation.  TheHolders’ obligations to contribute pursuant to this Section 8(d) areseveral in proportion to the respective principal amount of Transfer RestrictedSecurities held by each Holder hereunder and not joint.

 

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# **SECTION 9.**         RULE 144AAND RULE 144

 

The Company andeach Guarantor agrees with each Holder, for so long as any Transfer RestrictedSecurities remain outstanding and during any period in which the Company or suchGuarantor (i) is not subject to Section 13 or 15(d) of the Exchange Act,to make available, upon request of any Holder, to such Holder or beneficialowner of Transfer Restricted Securities in connection with any sale thereof andany prospective purchaser of such Transfer Restricted Securities designated bysuch Holder or beneficial owner, the information required by Rule 144A(d)(4)under the Act in order to permit resales of such Transfer Restricted Securitiespursuant to Rule 144A under the Act, and (ii) is subject to Section 13 or15(d) of the Exchange Act, to make all filings required thereby in a timelymanner in order to permit resales of such Transfer Restricted Securitiespursuant 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 Companyand the Guarantor(s) further agree to waive the defense in any action forspecific performance that a remedy at law would be adequate.

##  

## (b)           No InconsistentAgreements.  Neither the Company norany Guarantor will, on or after the date of this Agreement, enter into anyagreement with respect to its securities that is inconsistent with the rightsgranted 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)           Amendments andWaivers.  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 thisSection 10(c)(i), the Company has obtained the written consent of Holdersof all outstanding Transfer Restricted Securities and (ii) in the case of allother provisions hereof, the Company has obtained the written consent ofHolders of a majority of the outstanding principal amount of TransferRestricted Securities (excluding Transfer Restricted Securities held by theCompany or its Affiliates).  Notwithstandingthe foregoing, 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

 

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majority of the outstanding principal amount of Transfer RestrictedSecurities subject to such Exchange Offer.

##  

## (d)           Additional Guarantors.  TheCompany shall cause any of its Restricted Subsidiaries (as defined in theIndenture) that becomes, prior to the consummation of the Exchange Offer, aGuarantor in accordance with the terms and provisions of the Indenture tobecome a party to this Agreement as a Guarantor.

##  

## (e)           Third PartyBeneficiary.  The Holders shall bethird party beneficiaries to the agreements made hereunder between the Companyand the Guarantor(s), on the one hand, and the Initial Purchasers, on the otherhand, and shall have the right to enforce such agreements directly to theextent they may deem such enforcement necessary or advisable to protect itsrights or the rights of Holders hereunder.

##  

## (f)            Notices.  All notices and other communicationsprovided for 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 noticesand communications shall be deemed to have been duly given: at the timedelivered by hand, if personally delivered; when receipt acknowledged, iftelecopied; and on the next Business Day, if timely delivered to an air courierguaranteeing overnight delivery.

 

Copies of all suchnotices, demands or other communications shall be concurrently delivered by thePerson giving the same to the Trustee at the address specified in theIndenture.

 

## (g)           Successors andAssigns.  This Agreement shall inureto the benefit of and be binding upon the successors and assigns of each of theparties, including without limitation and without the need for an expressassignment, subsequent Holders; *provided* that nothing herein

 

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shall be deemed to permit any assignment, transfer or other dispositionof Transfer Restricted Securities in violation of the terms hereof or of thePurchase Agreement or the Indenture.  Ifany transferee of any Holder shall acquire Transfer Restricted Securities inany manner, whether by operation of law or otherwise, such Transfer RestrictedSecurities shall be held subject to all of the terms of this Agreement, and bytaking and holding such Transfer Restricted Securities such Person shall beconclusively deemed to have agreed to be bound by and to perform all of theterms and provisions of this Agreement, including the restrictions on resaleset forth in this Agreement and, if applicable, the Purchase Agreement, andsuch Person shall be entitled to receive 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)            Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY ANDCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARDTO 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)            Entire Agreement.  This Agreement is intended by the parties asa final expression of their agreement and intended to be a complete andexclusive statement of the agreement and understanding of the parties hereto inrespect of the subject matter contained herein.  There are no restrictions, promises, warranties or undertakings,other than those set forth or referred to herein with respect to theregistration rights granted with respect to the Transfer RestrictedSecurities.  This Agreement supersedesall prior agreements and understandings between the parties with respect tosuch subject matter.

 

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IN WITNESSWHEREOF, the parties have executed this Agreement as of the date first writtenabove.

 
|                            | UBIQUITEL  OPERATING COMPANY |
|---------------------------------|------------------------------|
|                            |                         |
|                            |                         |
|                            | By:                          |   |   |
|                            |                         | Name: Donald A.  Harris |
|                            |                         | Title: President  and Chief Executive Officer |
|                            |                         |
|                            |                         |
|                            | UBIQUITEL INC.               |
|                            |                         |
|                            |                         |
|                            | By:                          |   |   |
|                            |                         | Name: Donald A.  Harris |
|                            |                         | Title: President  and Chief Executive Officer |
|                            |                         |
|                            |                         |
| BEAR, STEARNS  & CO. INC.   |                         |
|                            |                         |
|                            |                         |
| By:                             |                         |   |   |
|                            | Name:                        |   |   |
|                            | Title:                       |   |   |
|                            |                         |   |   |
|                            |                         |   |   |
| CITIGROUP GLOBAL  MARKETS INC.  |                         |
|                            |                         |   |   |
|                            |                         |   |   |
| By:                             |                         |   |   |
|                            | Name:                        |   |   |
|                            | Title:                       |   |   |
|                            |                         |   |   |
|                            |                         |   |   |
| BANC OF AMERICA  SECURITIES LLC |                         |
|                            |                         |   |   |
|                            |                         |   |   |
| By:                             |                         |   |   |
|                            | Name:                        |   |   |
|                            | Title:                       |   |   |

 

----