NII CAPITAL CORP.
$800,000,000
10% Senior Notes due 2016
REGISTRATION RIGHTS
AGREEMENT
New York, New York
August 18, 2009
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
J.P. Morgan
Securities Inc.
270 Park Avenue
New York, New York 10017
NII Capital Corp.,
a corporation organized under the laws of the State of Delaware
(the “Company”), proposes to issue and sell to certain
purchasers (the “Initial Purchasers”) its 10% Senior
Notes due 2016 (the “Notes”), upon the terms set forth
in the Purchase Agreement among the Company, the Guarantors (as
defined herein) and the Initial Purchasers dated August 13,
2009 (the “Purchase Agreement”) relating to the initial
placement (the “Initial Placement”) of the Notes. The
Notes will be unconditionally guaranteed on a senior unsecured
basis by each of the entities listed on Schedule I (the
“Guarantors”) as provided for in the Indenture (as
defined herein) (the “Guarantees” and, together with
the Notes, the “Securities”). To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Company and the
Guarantors, jointly and severally, agree with you for your benefit
and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) and the Exchange Securities (as
defined herein) (each a “Holder” and, collectively, the
“Holders”), as follows:
1.
Definitions . Capitalized terms used herein without
definition shall have their respective meanings set forth in the
Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following
meanings:
“Act”
shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated
thereunder.
“Additional
Interest” shall have the meaning set forth in Section 8
hereof.
“Affiliate”
shall have the meaning specified in Rule 405 under the Act and
the terms “controlling” and “controlled”
shall have meanings correlative thereto.
“Broker-Dealer”
shall mean any broker or dealer registered as such under the
Exchange Act.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a
federal legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York City.
“Closing
Date” shall mean the date of the first issuance of the
Securities.
“Commission”
shall mean the Securities and Exchange Commission.
“Deferral
Period” shall have the meaning indicated in
Section 4(k)(ii) hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
“Exchange
Securities” shall mean debt securities of the Company and the
related guarantees of the Guarantors as provided for in the
Indenture identical in all material respects to the Securities
(except that the Additional Interest provisions and transfer
restrictions shall be eliminated) to be issued under the
Indenture.
“Exchange
Offer Registration Period” shall mean the 180-day period
following the consummation of the Registered Exchange Offer,
exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer
Registration Statement, or such shorter period as will terminate
when all Securities covered by the Exchange Offer Registration
Statement have been exchanged pursuant thereto.
“Exchange
Offer Registration Statement” shall mean a registration
statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all
amendments and supplements to such registration statement,
including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“Exchanging
Dealer” shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for
Exchange Securities any Securities that it acquired for its own
account as a result of market-making activities or other trading
activities (but not directly from the Company, any Guarantor, or
any Affiliate of either the Company or any Guarantor).
“Final
Memorandum” shall have the meaning set forth in the Purchase
Agreement.
“FINRA
Rules” shall mean the rules of the Financial Industry
Regulatory Authority.
“Freely
Tradable” shall mean, with respect to a Security, a Security
that at any time of determination (i) may be sold to the
public in accordance with Rule 144 under the Act by
a
person that is
not an “affiliate” (as defined in Rule 144 under
the Act) of the Company where no conditions of Rule 144 are
then applicable (other than the holding period requirement in
paragraph (d) of Rule 144 so long as such holding period
requirement is satisfied at such time of determination) and
(ii) does not bear any restrictive legends relating to the Act
or any restrictive CUSIP numbers.
“Guarantors”
shall have the meaning set forth in the preamble hereto.
“Holder”
shall have the meaning set forth in the preamble hereto.
“Indenture”
shall mean the Indenture relating to the Notes, dated as of
August 18, 2009 among the Company, the Guarantors and
Wilmington Trust Company, as trustee, as the same may be amended
from time to time in accordance with the terms thereof.
“Initial
Placement” shall have the meaning set forth in the preamble
hereto.
“Initial
Purchasers” shall have the meaning set forth in the preamble
hereto.
“Losses”
shall have the meaning set forth in Section 6(d) hereof.
“Majority
Holders” shall mean, on any date, Holders of a majority of
the aggregate principal amount of Securities and/or Exchange
Securities, as applicable, registered under a Registration
Statement.
“Managing
Underwriters” shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten
offering, if any, under a Shelf Registration Statement.
“Notes”
shall have the meaning set forth in the preamble hereto.
“Prospectus”
shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A
under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Securities or the Exchange Securities covered by
such Registration Statement, and all amendments and supplements
thereto, including post-effective amendments and any and all
information incorporated by reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble
hereto.
“Registered
Exchange Offer” shall mean the offer of the Company and the
Guarantors to issue and deliver to Holders that are not prohibited
by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal
amount of the Exchange Securities.
“Registrable
Securities” shall mean (i) Securities other than those
that (A) have been registered under a Registration Statement
and exchanged or disposed of pursuant to such Registration
Statement, (B) are Freely Tradable, or (C) cease to be
outstanding, and (ii) any
Exchange
Securities, the resale of which by the Holder thereof requires
compliance with the prospectus delivery requirements of the
Act.
“Registration
Default” shall have the meaning set forth in Section 8
hereof.
“Registration
Statement” shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the
Securities or the Exchange Securities pursuant to the provisions of
this Agreement, any amendments and supplements to such registration
statement, including post-effective amendments (in each case
including the Prospectus contained therein), all exhibits thereto
and all material incorporated by reference therein.
“Securities”
shall have the meaning set forth in the preamble hereto.
“Shelf
Registration” shall mean a registration effected pursuant to
Section 3 hereof.
“Shelf
Registration Period” has the meaning set forth in Section
3(b) hereof.
“Shelf
Registration Statement” shall mean a “shelf”
registration statement of the Company and the Guarantors pursuant
to the provisions of Section 3 hereof which covers some or all
of the Securities or Exchange Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
“Trustee”
shall mean the trustee with respect to the Securities under the
Indenture.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
“underwriter”
shall mean any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2.
Registered Exchange Offer . (a) Unless a Registered
Exchange Offer shall not be permissible by applicable law or
Commission policy, the Company and the Guarantors shall use their
respective reasonable best efforts to (i) prepare and, within
210 calendar days after the Closing Date, file with the Commission
the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer, (ii) cause the Exchange Offer
Registration Statement to become effective under the Act and
commence the Registered Exchange Offer promptly after such
effectiveness and (iii) keep the Exchange Offer Registration
Statement effective until the closing of the Registered Exchange
Offer and (iv) cause the Registered Exchange Offer to be
consummated not later than the 270th calendar day following the
Closing Date (or, if such 270 th day is not a Business Day, the next succeeding
Business Day) (the “Exchange Date”).
(b) Upon
the effectiveness of the Exchange Offer Registration Statement, the
Company and the Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for
Exchange Securities (assuming that such Holder is not an Affiliate
of the Company
or any of the
Guarantors, acquires the Exchange Securities in the ordinary course
of such Holder’s business, has no arrangements with any
person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without
any limitations or restrictions under the Act.
(c) In
connection with the Registered Exchange Offer, the Company and the
Guarantors shall:
(i) mail
or cause to be mailed to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related
documents;
(ii) keep
the Registered Exchange Offer open for not less than 20 Business
Days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) use
their respective reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that
it is available for sales of Exchange Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
(iv) utilize
the services of a depositary for the Registered Exchange Offer,
which may be the Trustee or an Affiliate of the Trustee;
(v) permit
Holders to withdraw tendered Securities at any time prior to the
close of business, New York time, on the last Business Day on which
the Registered Exchange Offer is open;
(vi) prior
to effectiveness of the Exchange Offer Registration Statement, if
requested by the staff of the Commission, provide a supplemental
letter to the Commission (A) stating that the Company and the
Guarantors are conducting the Registered Exchange Offer in reliance
on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), Morgan Stanley
and Co., Inc. (pub. avail. June 5, 1991); and
(B) including a representation that the Company and the
Guarantors have not entered into any arrangement or understanding
with any person to distribute the Exchange Securities to be
received in the Registered Exchange Offer and that, to the best of
the Company’s and the Guarantors’ information and
belief, each Holder participating in the Registered Exchange Offer
is acquiring the Exchange Securities in the ordinary course of
business and has no arrangement or understanding with any person to
participate in the distribution of the Exchange Securities;
and
(vii) comply
in all material respects with all applicable laws.
(d) As
soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantors shall:
(i) accept
for exchange all Securities properly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer on or prior to
its expiration;
(ii) deliver
or cause to be delivered to the Trustee for cancellation in
accordance with Section 4(q) all Securities so accepted for
exchange; and
(iii) cause
the Trustee promptly to authenticate and deliver to each Holder of
Securities a principal amount of Exchange Securities equal to the
principal amount of the Securities of such Holder so accepted for
exchange.
(e) Each
Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Registered Exchange Offer to participate
in a distribution of the Exchange Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely
on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and Morgan
Stanley and Co., Inc. (pub. avail. June 5, 1991), as
interpreted in the Commission’s letter to Shearman &
Sterling LLP dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus
delivery requirements of the Act in connection with any secondary
resale transaction, which 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 under the Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Company, the Guarantors
or one of their respective Affiliates. Accordingly, each Holder
participating in the Registered Exchange Offer shall be required to
represent to the Company and the Guarantors that, at the time of
the consummation of the Registered Exchange Offer:
(i) any
Exchange Securities received by such Holder will be acquired in the
ordinary course of business;
(ii) such
Holder will have no arrangement or understanding with any person to
participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Act; and
(iii) such
Holder is not an Affiliate of the Company or any of the
Guarantors.
(f) If
any Initial Purchaser determines that it is prohibited by law or
Commission policy from participating in the Registered Exchange
Offer with respect to the exchange of Securities constituting any
portion of an unsold allotment, at the request of such Initial
Purchaser, the Company and the Guarantors shall issue and deliver
to the person purchasing Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof
from such Initial Purchaser, in exchange for such Securities, a
like principal amount of Exchange Securities.
3. Shelf
Registration . (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission’s staff,
the Company determines upon advice of its outside counsel that it
is not permitted to effect the Registered Exchange Offer as
contemplated by Section 2 hereof; (ii) the Registered
Exchange Offer has not been consummated by the Exchange Date; or
(iii) any Holder notifies the Company within 30 days
following the
consummation of
the Registered Exchange Offer that (A) it is prohibited by law
or Commission policy from participating in the Registered Exchange
Offer; (B) it may not resell the Exchange Securities acquired
by it in the Registered Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales; or (C) it is a broker-dealer and
owns Securities acquired directly from the Company or an affiliate
of the Company, then the Company and the Guarantors shall effect a
Shelf Registration Statement in accordance with subsection
(b) below.
(b)
(i) The Company and the Guarantors shall use their respective
reasonable best efforts to file with the Commission within
30 days after such filing obligation arises, but in no event
earlier than the 210th calendar day after the Closing Date, and
shall use their respective reasonable best efforts to cause to be
declared effective under the Act within 75 days of such
filing, pursuant to subsection (a) of this Section 3, a
Shelf Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the
Holders thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder shall be
entitled to have the Securities held by it covered by such Shelf
Registration Statement or be entitled to use a Prospectus forming a
part thereof unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder
and has returned to the Company a completed and signed selling
securityholder questionnaire in reasonable and customary form by
the reasonable deadline for responses set forth therein; and
provided further, that with respect to Exchange Securities received
by an Initial Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Company and the Guarantors may,
if permitted by current interpretations by the Commission’s
staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with
respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The
Company and the Guarantors shall use their respective reasonable
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in
order to permit the Prospectus forming part thereof to be usable by
Holders for a period (the “Shelf Registration Period”)
from the date the Shelf Registration Statement is declared
effective by the Commission until the first to occur of
(A) the date upon which all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement, become Freely Tradable or cease to be outstanding or
(B) two years after the Closing Date.
(iii) Subject
to the provisions of Section 4 hereof, the Company and the
Guarantors shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply as to form in all
material respects with the applicable requirements of the Act; and
(B) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case of
the Prospectus, in the light of the circumstances under which they
were made) not misleading.
4.
Additional Registration Procedures . In connection with any
Shelf Registration Statement and, to the extent applicable, any
Exchange Offer Registration Statement, the following provisions
shall apply:
(a) The
Company and the Guarantors shall:
(i) furnish
to the Initial Purchasers, not less than five Business Days prior
to the filing thereof with the Commission, a copy of any Exchange
Offer Registration Statement and any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein (but excluding all
documents incorporated by reference therein after the initial
filing) and shall use their respective reasonable best efforts to
reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchasers reasonably
propose;
(ii) include
the information (as may be revised at the request or requirement of
the Commission) substantially in the form set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Registered Exchange Offer, in Annex C hereto in the underwriting or
plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if
requested by an Initial Purchaser, include the information required
by Item 507 or 508 of Regulation S-K, as applicable, in
the Prospectus contained in the Exchange Offer Registration
Statement; and
(iv) in
the case of a Shelf Registration Statement, include the names of
the Holders (to the extent provided by such Holders) that propose
to sell Securities pursuant to the Shelf Registration Statement as
selling security holders; provided, that, the Company shall not be
required to include the name of any Holder that has not complied
with the requirements set forth in Section 3(b)(i)
hereof.
(b) Subject
to the following provisions of this Section 4, the Company and
the Guarantors shall use their respective reasonable best efforts
to ensure that:
(i) any
Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto
complies as to form in all material respects with the Act;
and
(ii) any
Registration Statement and any amendment thereto does not, as of
the effective date of the Registration Statement or such amendment,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not
misleading.
(c) The
Company and the Guarantors shall advise the Initial Purchasers, the
Holders of Securities covered by any Shelf Registration Statement
and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Company or
any Guarantor a
telephone or facsimile number and address for notices (a
“Known Exchanging Dealer”), and, if requested by the
Initial Purchasers or any such Holder or Known Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the Prospectus until the Company and the
Guarantors shall have remedied the basis for such
suspension):
(i) when
the relevant Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become
effective;
(ii) of
any request by the Commission for any amendment or supplement to
the Registration Statement or the Prospectus or for additional
information;
(iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceeding for that purpose;
(iv) of
the receipt by the Company or the Guarantors of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) at
a time when a Prospectus is required to be delivered under the Act,
of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material
fact and (B) do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading.
(d) The
Company and the Guarantors shall use their respective reasonable
best efforts to prevent the issuance of any order suspending the
effectiveness of any Registration Statement or the qualification of
the securities therein for sale in any jurisdiction, and if issued
to obtain as soon as possible the withdrawal thereof.
(e) The
Company and the Guarantors shall furnish, upon written request, to
each Holder of Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment
thereto.
(f) The
Company and the Guarantors shall, during the Shelf Registration
Period, deliver to each Holder of Securities covered by any Shelf
Registration Statement, without charge, as many copies of the
Prospectus (including the preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. Subject to the
provisions of this Section 4, the Company and the Guarantors
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement (in each case, if such Holder is
properly named in such Prospectus, as amended and supplemented),
except during any suspension period referred to in Section 4(c)
above or Section 4(k) below.
(g) The
Company and the Guarantors shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective
amendment thereto.
(h) The
Company and the Guarantors shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to
deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or
supplement thereto as any such person may reasonably request.
Subject to the provisions of this Section 4, the Company and
the Guarantors consent to the use of the Prospectus or any
amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other person that may be required to
deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities
covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement (in each
case, if such Initial Purchaser, Exchanging Dealer or other person
is properly named in such Prospectus, as amended and supplemented),
except during any suspension period referred to in Section 4(c)
above or Section 4(k) below.
(i) Prior
to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company and
the Guarantors shall arrange, if necessary, for the qualification
of the Securities or the Exchange Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request
and shall maintain such qualification in effect so long as
required; pr
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