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Exhibit 10.2 REGISTRATION RIGHTS
AGREEMENT by and among METROPCS WIRELESS, INC.
THE GUARANTORS PARTY HERETO and J.P. MORGAN
SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
HSBC SECURITIES (USA) INC. January 20, 2009
This
Registration Rights Agreement (this " Agreement ") is
made and entered into as of January 20, 2009 by and among
MetroPCS Wireless, Inc., a Delaware corporation (the "
Company "), and each of the guarantors listed on
Schedule I hereto (the " Guarantors ") and J.P.
Morgan Securities Inc., Banc of America Securities LLC and HSBC
Securities (USA) Inc. (the " Initial Purchasers
"). The Initial Purchasers have, jointly and not severally, agreed
to purchase the Company’s 9 1 /4% Senior Notes due
2014 (the " Notes ") pursuant to the Purchase
Agreement (as defined below).
This
Agreement is made pursuant to the Purchase Agreement, dated
January 14, 2009, (the " Purchase Agreement "),
by and among the Company, the Guarantors, and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase
the Notes, the Company and the Guarantors have 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(j) of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture (the "
Indenture "), dated January 20, 2009, among the
Company, the Guarantors and The Bank of New York Mellon Trust
Company, N.A., as Trustee, relating to the Notes and the Exchange
Notes (as defined below).
The
parties hereby agree as follows: SECTION 1. DEFINITIONS
As used
in this Agreement, the following capitalized terms shall have the
following meanings:
Affiliate : As defined in Rule 144 of the
Securities Act.
Broker-Dealer : Any broker or dealer registered under
the Exchange Act.
Capital Stock : As defined in the Purchase Agreement.
Certificated Securities : Definitive Notes, as
defined in the Indenture.
Closing Date : The date hereof.
Commission : The United States 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 Securities 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 Notes tendered by Holders
thereof 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 United States Securities Exchange
Act of 1934, as amended.
Exchange Notes : The Company’s 9 1
/4% Senior Notes due 2014 and the related guarantees 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 Notes that are
tendered by such Holders in connection with such exchange and
issuance, and evidencing the same continuing Indebtedness.
Exchange Offer Registration Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Exempt Resales : The transactions in which the
Initial Purchasers propose to sell the Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A
under the Securities Act and pursuant to Regulation S under
the Securities Act.
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 Guarantors 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 and
(ii) including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Regulation S : Regulation S promulgated
under the Securities Act.
Rule 144 : Rule 144 promulgated under the
Securities Act.
Securities Act : The United States Securities Act of
1933, as amended.
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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 (A) Note,
until the earliest to occur of (i) the date on which such Note
is exchanged in the Exchange Offer for an Exchange Note which is
entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the
Securities Act, (ii) the date on which such Note has been
disposed of in accordance with a Shelf Registration Statement (and
the purchasers thereof have been issued Exchange Notes), or
(iii) the date on which such Note is distributed to the public
pursuant to Rule 144 under the Securities Act and each
(B) Exchange Note held by a Broker Dealer until the date on
which such Exchange Note is disposed of by a Broker-Dealer pursuant
to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including the delivery of the Prospectus
contained therein). 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 (after
the procedures set forth in Section 6(a)(i) below have been
complied with) or Commission policy, the Company and the Guarantors
shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission on or prior to the 270th day after the
issue date of the Notes (such date being the " Filing
Deadline "), (ii) use all commercially reasonable
efforts to cause such Exchange Offer Registration Statement to be
declared effective by the Commission on or prior to 300 days after
the issue date of the Notes (such 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 the Exchange Offer Registration Statement to be declared
effective, (B) file, if applicable, a post-effective amendment
to such Exchange Offer Registration Statement pursuant to
Rule 430A under the Securities 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) as soon as practicable
following 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 Notes that are Transfer Restricted Securities and
(ii) resales of Exchange Notes by Broker-Dealers that tendered
into the Exchange Offer Notes that such Broker-Dealer acquired for
its own account as a result of market making activities or other
trading activities (other than Notes acquired directly from the
Company or any of its Affiliates) as contemplated by Section 3(c)
below.
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(b) The
Company and the Guarantors shall use their respective 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 Guarantors shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities
other than the Exchange Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors 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 thereafter, or longer, if
required by the federal securities laws (the last day of such
period 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 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 Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in
connection with its initial sale of any Exchange Notes received by
such Broker-Dealer in the Exchange Offer, the Company and the
Guarantors 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 Guarantors agree to
use their respective 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 Section 6(a) and (c) hereof and in conformity
with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from
time to time, for a period of 180 days 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 Guarantors shall
provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request, and in no event
later than two business days after such request, at any time during
such period.
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SECTION 4. SHELF REGISTRATION
(a)
Shelf Registration . If (i) the Company and the
Guarantors 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 (after the Company and the Guarantors have complied
with the procedures set forth in Section 6(a)(i) below) or
Commission policy or (ii) if any Holder of Transfer Restricted
Securities shall notify the Company within 20 business days
following the consummation of the Exchange Offer that (A) such
Holder was prohibited by law or 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 Notes acquired
directly from the Company or any of its Affiliates, then the
Company and the Guarantors shall use all commercially reasonable
efforts to file with the Commission a Shelf Registration Statement
(as defined below) to cover resales of the Notes by Holders of the
Notes who satisfy certain conditions relating to the provision of
information in connection with the Shelf Registration Statement. If
obligated to file a Shelf Registration Statement, the Company and
the Guarantors shall use all commercially reasonable efforts to:
(x) file, on or prior to
30 days after the earlier of (i) the date on which the
Company determines that the Exchange Offer Registration Statement
cannot 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, (such earlier date, the "
Filing Deadline "), a shelf registration statement
pursuant to Rule 415 under the Securities Act (which may be an
amendment to the Exchange Offer Registration Statement (the "
Shelf Registration Statement ")), relating to all
Transfer Restricted Securities, and
(y) cause such Shelf
Registration Statement to be declared effective by the Commission
on or prior to 180 days after the Filing Deadline for the
Shelf Registration Statement (such 180th day the "
Effectiveness Deadline ").
If,
after the Company and the Guarantors have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section
3(a) above, the Company and the Guarantors 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) 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 Guarantors 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 Guarantors shall
use their respective 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 Securities Act and the policies, rules and
regulations of the Commission as announced from time
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to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i) hereof) following the Closing
Date, or such shorter period as will terminate at such time there
are no longer any Transfer Restricted Securities that are covered
by the Shelf Registration Statement outstanding.
(b)
Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement . No Holder of Transfer
Restricted Securities 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 Item 508 of
Regulation S-K, as applicable, of the Securities Act for use
in connection with any Shelf Registration Statement or Prospectus
or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages
pursuant to Section 5 hereof unless such Holder shall have
provided all such information in the required times. 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 by the applicable Filing Deadline,
(ii) any such Registration Statement has not been declared
effective by the Commission by the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated by
the Consummation Deadline or (iv) any Registration Statement
required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures
such failure and that is itself declared effective within
5 days of filing such post-effective amendment to such
Registration Statement (each such event referred to in clauses
(i) through (iv), a " Registration Default " ),
then the Company and the Guarantors hereby jointly and severally
agree to pay to each Holder of Transfer Restricted Securities
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 $0.20 per week per
$1,000 in principal amount of Transfer Restricted Securities;
provided that the Company and the Guarantors 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 (i) above,
(2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon
Consummation of the Exchange Offer, in the case of
(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
(iv) above, the liquidated damages
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payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), as applicable,
shall cease.
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 Guarantors 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. Notwithstanding
anything contained herein or in the Indenture to the contrary, the
payment of liquidated damages shall be the only remedy available to
holders of Notes for any Registration Default. SECTION 6.
REGISTRATION PROCEDURES
(a)
Exchange Offer Registration Statement . In connection with
the Exchange Offer, the Company and the Guarantors shall
(x) comply with all applicable provisions of Section 6(c)
below, (y) use their respective commercially reasonable
efforts to effect such exchange and to permit the resale of
Exchange Notes by Broker-Dealers that tendered in the Exchange
Offer Notes that such Broker-Dealer acquired for its own account as
a result of its market making activities or other trading
activities (other than 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
Guarantors hereby agree to use commercially reasonable efforts to
seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Transfer Restricted Securities. The Company
and the Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level. In connection with the
foregoing, the Company and the Guarantors hereby agree to take all
such other commercially reasonable 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
of Transfer Restricted Securities (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 Guarantors (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
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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 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
Securities Act in 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 Guarantors shall provide a
supplemental letter to the Commission (A) stating that the
Company and the Guarantors 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 of the
Guarantors 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 Company’s and the
Guarantors’ knowledge 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 commercially
reasonable 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 connec
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