EXHIBIT 10.1


 




 





 


REGISTRATION RIGHTS
AGREEMENT


 


 


Dated
as of October 14, 2004


by
and among


 


UBIQUITEL
OPERATING COMPANY


UBIQUITEL
INC.


 


and


 


BEAR,
STEARNS & CO. INC.


BANC
OF AMERICA SECURITIES LLC


 




 





 





















 


This Registration Rights Agreement (this “Agreement”) is made and entered
into as of October 14, 2004, by and among UbiquiTel Operating Company, a
Delaware corporation (the “Company”),
UbiquiTel Inc. (together with any new party to this Agreement pursuant to
Section 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 whom
has agreed to purchase the Company’s 97/8% Senior Notes
due 2011 (the “Initial Notes”)
pursuant to the Purchase Agreement (as defined below).


 


This Agreement is made pursuant to the Purchase
Agreement, 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 to
purchase the Initial Notes, the Company has agreed to provide the registration
rights set forth in this Agreement.  The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in Section 10 of the Purchase Agreement.  Capitalized terms used herein and not
otherwise 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 of
New 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 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 the
Exchange Act.


 


Business Day:  Any
day other than a Saturday, a Sunday or a day on which banking institutions in
the City of New York or at place of payment are authorized by law, regulation
or 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) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(b) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
validly tendered by Holders thereof and accepted by the Company 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, as
amended.


 


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


 


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


 


Exchange Offer Registration Statement:  The Registration Statement relating to the
Exchange 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 Registration
Statement at the time such Registration Statement is declared effective, as amended
or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated 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 Company and
the Guarantor(s) relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement, (ii) including the
Prospectus included therein, and (iii) including all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated 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 occur
of (a) the date on which such Initial Note has been validly exchanged in the
Exchange Offer by a Person


 


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


 


SECTION 2.                 HOLDERS


 


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


 


SECTION 3.                 REGISTERED EXCHANGE OFFER


 


(a)           Unless
the Exchange Offer shall not be permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Guarantor(s) shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission no later than 75
days after the Closing Date or, if such 75th day is not a Business Day, on the
next succeeding Business Day (such 75th day or next succeeding Business Day
being the “Filing Deadline”), (ii) use all
commercially reasonable efforts to cause such Exchange Offer Registration
Statement 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 “Effectiveness
Deadline”), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause it to become effective, (B) file, if applicable,
a post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary filings, if
any, in connection with the registration and qualification of the Exchange
Notes to be made under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness
of such Exchange Offer Registration Statement, commence and Consummate the
Exchange Offer.  The Exchange Offer shall
be on the appropriate form permitting (i) registration of the Exchange Notes to
be offered in exchange for the Initial Notes that are Transfer Restricted
Securities and (ii) resales of Exchange Notes by Broker-Dealers that tendered
into the Exchange Offer Initial Notes that such Broker-Dealer acquired for its
own account as a result of market-making activities or other trading activities
(other than Initial Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below.


 


(b)           The
Company and the Guarantor(s) shall use all commercially reasonable efforts to
cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to
Consummate 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 cause
the Exchange Offer to comply with all applicable federal and state


 


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


 


(c)           The
Company shall include a “Plan of Distribution” section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate therein that
any Broker-Dealer who holds Transfer Restricted Securities that were acquired
for the account of such Broker-Dealer as a result of market-making activities
or other trading activities (other than Initial Notes acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer.  Such “Plan of Distribution” section shall
also contain all other information with respect to such sales by such
Broker-Dealers that the Commission may require in order to permit such sales
pursuant thereto, but such “Plan of Distribution” shall not name any such
Broker-Dealer or disclose the amount of Transfer Restricted Securities held by
any such Broker-Dealer, except to 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 &
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 a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange
Offer, the Company and Guarantor(s) shall permit the use of the Prospectus
contained in the Exchange Offer Registration Statement by such Broker-Dealer to
satisfy such prospectus delivery requirement. 
To the extent necessary to ensure that the Prospectus contained in the
Exchange Offer Registration Statement is available for sales of Exchange Notes
by Broker-Dealers, the Company and the Guarantor(s) agree to use all
commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the Consummation Deadline or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto.  The Company and the Guarantor(s) shall provide
sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.


 


SECTION 4.                 SHELF REGISTRATION


 


(a)           Shelf
Registration.  If (i) the Company and
the Guarantor(s) are not (A) required to file the Exchange Offer Registration
Statement or (B) permitted to Consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy (after
the Company and the Guarantor(s) have complied with the procedures set forth in
Section 6(a)(i) below) or (ii) any Holder notifies in writing the Company prior
to 20 Business Days following Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or


 


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


 


(x) use all commercially reasonable efforts on or
prior to 30 days (or, if such 30th day is not a Business Day, on the next
succeeding Business Day) after the earlier of (i) the date as of which the
Company determines that the Exchange Offer 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 Company receives the notice specified in clause
(a)(ii) above (30 days (or next succeeding Business Day) after such earlier
date, the “Filing Deadline”), to file a
shelf registration statement pursuant to Rule 415 under the Act (which may be
an 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 to
cause such Shelf Registration Statement to become effective on or prior to 60
days (or, if such 60th day is not a Business Day, on the next succeeding
Business Day) after the Filing Deadline for the Shelf Registration Statement
(such 60th day (or next succeeding Business Day) the “Effectiveness
Deadline”).


 


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


 


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


 


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


 


5





















 


with any Shelf Registration Statement or Prospectus or preliminary prospectus
included therein.  No Holder shall be
entitled to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information.  Each selling Holder agrees to promptly
furnish additional information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.


 


SECTION 5.                 LIQUIDATED DAMAGES


 


If (i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the applicable Filing
Deadline, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the applicable Effectiveness Deadline, (iii)
the Exchange Offer has not been Consummated on or prior to 30 Business Days
after the Effectiveness Deadline with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or usable for its intended purpose (each such event referred to in
clauses (i) through (iv), a “Registration Default”),
then the Company and the Guarantor(s) hereby jointly and severally agree to pay
to each Holder affected thereby liquidated damages in an amount equal to $0.05
per week per $1,000 in principal amount of Transfer Restricted Securities held
by such Holder for each week or portion thereof that the Registration Default
continues for the first 90-day period immediately following the occurrence of
such Registration Default.  The amount of
the liquidated damages shall increase by an additional $0.05 per week per
$1,000 in principal amount of Transfer Restricted Securities with respect to
each 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 in
principal amount of Transfer Restricted Securities; provided
that the Company and the Guarantor(s) shall in no event be required to pay
liquidated damages for more than 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, if applicable, 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 of clause (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of clause (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of clause (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.  Notwithstanding the foregoing, in the event
of a Registration Default of the type described under clause (iv) above, the
liquidated damages payable with respect to the Transfer Restricted Securities
shall cease to accrue thereon upon the expiration of the period referred to in
Rule 144(k) under the Act.


 


All accrued liquidated damages shall be paid to the
Holders entitled thereto, in the manner provided for the payment of interest in
the Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes.  Notwithstanding
the fact that any securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company and the
Guarantor(s) to pay liquidated damages with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.


 


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SECTION 6.                 REGISTRATION PROCEDURES


 


(a)           Exchange
Offer Registration Statement.  In
connection with the Exchange Offer, the Company and the Guarantor(s) shall (x)
comply with all applicable provisions of Section 6(c) below, (y) use all
commercially reasonable efforts to effect such exchange and to permit the
resale of Exchange Notes by Broker-Dealers that tendered in the Exchange Offer
Initial Notes that such Broker-Dealer acquired for its own account as a result
of its market-making activities or other trading activities (other than Initial
Notes acquired directly from the Company or any of its Affiliates) being sold
in 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 Commission
policy with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question as
to whether the Exchange Offer is permitted by applicable federal law, the
Company and the Guarantor(s) hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Guarantor(s) to Consummate an Exchange Offer for such Transfer Restricted
Securities.  The Company and the
Guarantor(s) hereby agree to pursue the issuance of such a decision to the
Commission staff level.  In connection
with the foregoing, the Company and the Guarantor(s) hereby agree to take all
such other actions as may be requested by the Commission or otherwise required
in connection with the issuance of such decision, including without limitation
(A) participating in telephonic conferences with the Commission, (B) delivering
to the Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that such
an Exchange Offer should be permitted and (C) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.


 


(ii)           As a
condition to its participation in the Exchange Offer, each Holder (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer, a
written representation to the Company and the Guarantor(s) (which may be
contained in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company, (B) it
is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange
Notes in its ordinary course of business. 
As a condition to its participation in the Exchange Offer each Holder
using the Exchange Offer to participate in a distribution of the Exchange Notes
shall acknowledge and agree that, if the resales are of Exchange Notes obtained
by such Holder in exchange for Initial Notes acquired directly from the Company
or an Affiliate thereof, it (1) could not, under Commission policy as in effect
on the date of this Agreement, rely on 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 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 delivery requirements of the Act in


 


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connection with a
secondary resale transaction and that such a secondary resale transaction must
be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K.


 


(iii)          Prior
to effectiveness of the Exchange Offer Registration Statement, the Company and
the Guarantor(s) shall provide a supplemental letter to the Commission (A)
stating that the Company and the Guarantor(s) are registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Morgan Stanley
and Co., Inc. (available June 5, 1991) as interpreted in the Commission’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 has
entered into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the best of
the Company’s and each Guarantor’s information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes received in the
Exchange Offer and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to clause (i)
above, if applicable.


 


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


 


(i)            comply
with all the provisions of Section 6(c) below and use all commercially
reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto
the Company and the Guarantor(s) will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof, and


 


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


 


(c)           General
Provisions.  In connection with any
Registration Statement and any related Prospectus required by this Agreement,
the Company and the Guarantor(s) shall:


 


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


 


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


 


(iii)          advise
each Holder promptly and, if requested by such Holder, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.  If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company and
the Guarantor(s) shall use all commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;


 


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(iv)          subject to
Section 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-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated 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 omit
to state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;


 


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


 


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


 


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


 


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


 


10





















 


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


 


(ix)           furnish to
each Holder in connection with such exchange, registration or sale, without
charge, at least one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto (and, if requested by any Holder,
all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference));


 


(x)            deliver
to each Holder without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company and the Guarantor(s) hereby consent to the
use (in accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;


 


(xi)           upon the
request of any Holder, enter into such customary agreements (including
underwriting agreements) and make such customary representations and warranties
and take all such other customary actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any applicable Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder in connection with any
sale or resale pursuant to any applicable Registration Statement.  In such connection, the Company and the
Guarantor(s) shall:


 


(A)          upon
request of any Holder, furnish (or in the case of paragraphs (2) and (3), use
its commercially reasonable efforts to cause to be furnished) to each Holder,
upon Consummation of the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement, as the case may be:


 


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


 


(2)           an
opinion, dated the date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case may be, of
counsel for the Company and the Guarantor(s) in customary form and covering
such other matters as such Holder may reasonably request, and in any event
including a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company and the
Guarantor(s) and representatives of the independent public accountants for the
Company and the Guarantor(s) and have considered the matters required to be stated


 


11





















 


therein and the statements contained therein, although (i) such counsel
is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of such statements, and (ii) such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to the extent such counsel deems appropriate upon
the statements of officers and other representatives of the Company and the
Guarantor(s)) and without independent check or verification), no facts came to
such counsel’s attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective and, in the case of the
Exchange Offer Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the opinion dated the
date 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 material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.  Without limiting the foregoing, such counsel
may state further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the related
Prospectus; and


 


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


 


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


 


(xii)          prior
to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders may request and do
any and all other acts or 


 


12





















 


things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however,
that neither the Company nor any Guarantor shall be required to register or
qualify as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;


 


(xiii)         in
connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at least two
Business Days prior to such sale of Transfer Restricted Securities;


 


(xiv)        use
all commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;


 


(xv)         provide a
CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depository Trust Company;


 


(xvi)        otherwise
use all commercially efforts to comply with all applicable rules and regulations
of the Commission, and make generally available to its security holders with
regard to any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 under the
Act (which need not be audited) covering a twelve-month period beginning after
the effective date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);


 


(xvii)       cause
the Indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
commercially reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and


 


13





















 


(xviii)      provide
promptly to each Holder, upon request, each document filed with the Commission
pursuant to the requirements of Section 13 or Section 15(d) of the Exchange
Act.


 


(d)           Restrictions
on Holders.  Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt of the notice
referred to in Section 6(c)(iii)(C) or any notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof (in
each case, a “Suspension Notice”), such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such Holder has
received copies of 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 use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus (in each case, the “Recommencement Date”).  Each Holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder’s possession which have been
replaced by the Company with more recently dated Prospectuses or (ii) deliver
to the Company (at the Company’s expense) all copies, other than permanent file
copies, then in such Holder’s possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice.  The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to
the number of days in the period from and including the date of delivery of the
Suspension Notice to the Recommencement Date.


 


SECTION 7.                 REGISTRATION EXPENSES


 


(a)           All
expenses incident to the Company’s and the Guarantor(s)’ performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Guarantor(s) and all
reasonable fees and disbursements of not more than one counsel acting for the
Holders of Transfer Restricted Securities and appointed in accordance with
Section 7(b) hereof (provided
that the fees of such counsel in connection with the Exchange Offer
Registration Statement shall not exceed $7,500 without the prior written
consent of the Company); and (v) all fees and disbursements of independent
certified public accountants of the Company and the Guarantor(s) (including the
expenses of any special audit and comfort letters 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 employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantor(s).


 


(b)           In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf


 


14





















 


Registration Statement), the Company and the Guarantor(s) will
reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities who are validly tendering Initial Notes in the Exchange Offer and/or
selling or reselling Initial Notes or Exchange Notes pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Latham & Watkins
LLP, unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.


 


SECTION 8.                 INDEMNIFICATION


 


(a)           The
Company and the Guarantor(s) agree, jointly and severally, to indemnify and
hold harmless each Holder, its directors, officers and each Person, if any, who
controls such Holder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), from and against any and all losses, claims, damages,
liabilities or judgments (including without limitation, any legal or other
expenses 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 become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or judgments (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus
or Prospectus (or any amendment or supplement thereto), or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages, liabilities or judgments (or
actions in respect thereof) arise out of or are based upon an untrue statement
or omission or alleged untrue statement or omission that is made therein in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by or on behalf of any of the Holders
expressly for use therein.  This
indemnity agreement will be in addition to any liability that the Company and
the Guarantor(s) may otherwise have.


 


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


 


(c)           In
case any action shall be commenced or threatened involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
“indemnified party”), the
indemnified party shall promptly notify the person against whom such indemnity


 


15





















 


may be sought (the “indemnifying
party”) in writing (provided
that the failure so to notify an indemnifying party shall relieve it from any
liability that it may have under this Section 8 solely to the extent that such
failure to provide notice forfeits or materially prejudices any defense
otherwise available to such indemnifying party), and the indemnifying party
shall assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all fees
and expenses of such counsel, as incurred (except that in the case of any
action in respect of which indemnity may be sought pursuant to both Sections
8(a) and 8(b), a Holder shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate 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 to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party has failed to assume the defense of such action or employ
counsel reasonably satisfactory to the indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party has
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified
party).  In any such case, the
indemnifying party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred.  Such
firm shall be designated in writing by a majority of the Holders, in the case of
the parties indemnified pursuant to Section 8(a), and by the Company and
Guarantor(s), in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with the written consent of
the indemnifying party or (ii) effected without the written consent of the
indemnifying party if (a) the settlement is entered into more than 20 Business
Days after the indemnifying party received a request from the indemnified party
for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party), (b) such
indemnifying party received notice of the terms of such settlement at least 10
Business Days prior to such settlement being entered into, and (c) such
indemnifying party failed to reimburse such indemnified party in accordance
with such request prior to the date of such settlement.   No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of 
judgment with respect to, any pending or threatened action in respect of
which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless (x) such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party, and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment.


 


16





















 


(d)           To
the extent that the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantor(s), on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Guarantor(s), on the one
hand, and of the Holder, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations.  The relative fault of the Company and the
Guarantor(s), on the one hand, and of the Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by or on behalf of the
Company 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 to
information and opportunity to correct or prevent such statement or omission.


 


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


 


SECTION 9.                 RULE 144A AND RULE 144


 


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


 


17





















 


request of any Holder, to
such Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Act, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.


 


SECTION 10.               MISCELLANEOUS


 


(a)           Remedies.  The Company and the Guarantor(s) acknowledge
and agree that any failure by the Company and/or the Guarantor(s) to comply
with their respective obligations under Sections 3 and 4 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages 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 required
to specifically enforce the Company’s and the Guarantor(s)’ obligations under
Sections 3 and 4 hereof.  The Company and
the Guarantor(s) further agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.


 


(b)           No
Inconsistent Agreements.  Neither the
Company nor any Guarantor will, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.  Neither the Company
nor any Guarantor has previously entered into, nor is currently a party to, any
agreement granting any registration rights with respect to its securities to
any Person that would require such securities to be included in any
Registration Statement filed hereunder. 
The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company’s and the Guarantor(s)’ securities under any agreement in effect on the
date hereof.


 


(c)           Amendments
and Waivers.  The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless required by
applicable law or (i) in the case of Section 5 hereof and this Section
10(c)(i), the Company has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Company or its
Affiliates).  Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose Transfer
Restricted Securities are not being tendered pursuant to such Exchange Offer,
may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities subject to such Exchange Offer.


 


(d)           Additional
Guarantors.  The Company shall cause
any of its Restricted Subsidiaries (as defined in the Indenture) that becomes,
prior to the consummation of the 


 


18





















 


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


 


(e)           Third
Party Beneficiary.  The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and the Guarantor(s), on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly to
the extent they may deem such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.


 


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


 


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


 


(ii)           if to the
Company 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 and
General 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 to
have been duly given: at the time delivered by hand, if personally delivered;
when receipt acknowledged, if telecopied; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.


 


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


 


(g)           Successors
and Assigns.  This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need for an
express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. 
If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such


 


19





















 


Person shall be conclusively deemed to have agreed to
be 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, if
applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.


 


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


 


(i)            Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(j)            Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED 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 the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


(l)            Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the 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 herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


20





















 


IN WITNESS WHEREOF, the parties have executed this
Agreement 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: