NOTES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS NOTES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of May 14, 1998 between Rural Cellular
Corporation, a Minnesota corporation (the "Company"), and TD Securities (USA)
Inc., NationsBanc Xxxxxxxxxx Securities LLC and BancBoston Securities Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated May 7,
1998 between the Company and the Initial Purchasers (the "Purchase Agreement"),
which provides for, in relevant part, the sale by the Company to the Initial
Purchasers of $125,000,000 aggregate principal amount of the Company's 9___%
Senior Subordinated Notes due 2008 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchasers and their direct and indirect transferees
and assigns the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, PROVIDED, HOWEVER, that any such depositary
must have an address in the Borough of Manhattan, in New York City.
"Exchange Notes" shall mean 9___% Series B Senior Subordinated Notes
due 2008 issued by the Company under the Indenture containing terms identical in
all respects to the Notes (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Notes or, if no such interest
has been paid, from the Original Issue Date, (ii) the transfer restrictions
thereon shall be eliminated and (iii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated) to be offered to
Holders of Notes in exchange for Registrable Notes pursuant to the Notes
Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture relating to the Notes dated as of
May 14, 1998 between the Company and Norwest Bank Minnesota, National
Association, as Trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; PROVIDED that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its affiliates (as such term is defined in Rule 405 under the 0000
Xxx) (other than the Initial Purchasers or subsequent holders of Registrable
Notes if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Notes" shall have the meaning set forth in the preamble of this
Agreement.
"Notes Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Notes Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Notes Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Notes Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the then Registrable Notes on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted by
the SEC, and all 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.
"Original Issue Date" shall mean the date on which the Notes are first
issued to the Initial Purchasers under the Indenture.
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"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f) of this Agreement.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Notes Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Notes" shall mean the Notes; PROVIDED, HOWEVER, that
certain Notes shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes shall have been declared effective under
the 1933 Act and such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) such Notes shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act, (iii) such Notes shall have ceased to be outstanding,
(iv) such Notes shall have been exchanged by a Person other than a Broker-Dealer
for Exchange Notes upon consummation of the Notes Exchange Offer or (v)
following the exchange by a Participating Broker-Dealer in the Notes Exchange
Offer of a Note for an Exchange Note, that Exchange Note is sold to a purchaser
who receives from that Participating Broker-Dealer on or before the date of that
sale a copy of the Prospectus.
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with state or other securities or blue sky qualification of any of
the Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements, certificates
representing the Registrable Notes or Exchange Notes and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in
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connection with the listing, if any, of any of the Registrable Notes or
Exchange Notes on any securities exchange or exchanges, (vi) all fees and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vii) the reasonable fees and disbursements of counsel for
the Company and, in the case of a Notes Shelf Registration Statement, the
reasonable fees and disbursements (including the expenses of preparing and
distributing any underwriting or securities sales agreement) of one counsel
(in addition to appropriate local counsel, if any) for the Holders (which
counsel shall be selected in writing by the Majority Holders), (viii) the
fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (ix) the fees and
expenses of a "qualified independent underwriter" as defined by Conduct Rule
2720 of the NASD (if required by the NASD rules) in connection with the
offering of the Registrable Notes or Exchange Notes, (x) the fees and
expenses of the Trustee, including its counsel, and any escrow agent or
custodian and (xi) any fees and disbursements of the underwriters customarily
required to be paid by issuers or sellers of securities and the reasonable
fees and expenses of any special experts retained by the Company in
connection with any Registration Statement, but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any 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.
"Rule 144A" means Rule 144A under the 1933 Act (or any successor
provision), as it may be amended from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Special Interest" shall have the meaning set forth in Section 2(e).
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. REGISTRATION UNDER THE 1933 ACT. (a) NOTES EXCHANGE OFFER
REGISTRATION. To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company at its cost
shall (A) file on or prior to the 90th calendar day following the Original
Issue Date with the SEC a Notes Exchange Offer Registration Statement
covering the offer by the Company to the Holders to exchange all of the
Registrable Notes for Exchange Notes, (B) use its best efforts to cause such
Notes Exchange Offer Registration Statement to be declared effective by the
SEC on or prior to the 120th calendar day following the Original Issue Date,
(C) use its best efforts to cause such Notes Exchange Offer Registration
Statement to
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remain effective until 90 calendar days after the closing of the Notes
Exchange Offer and (D) use its best efforts to keep the Notes Exchange Offer
open for not less than 30 days after, and to consummate the Notes Exchange
Offer on or prior to the 45th calendar day following (or longer if required
by applicable law), the date that the Notes Exchange Offer Registration
Statement is declared effective. The Exchange Notes will be issued under the
Indenture. Upon the effectiveness of the Notes Exchange Offer Registration
Statement, the Company shall promptly commence the Notes Exchange Offer, it
being the objective of such Notes Exchange Offer to enable each Holder (other
than Participating Broker-Dealers (as defined in Section 3(f) hereof)),
eligible and electing to exchange Registrable Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the 1933 Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Notes Exchange Offer for
the purpose of distributing the Exchange Notes) to trade such Exchange Notes
from and after their receipt without any limitations or restrictions under
the 1933 Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
In connection with the Notes Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Notes Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) use the services of the Depositary for the Notes Exchange
Offer with respect to Notes evidenced by global certificates;
(iii) permit Holders to withdraw, in whole or in part, tendered
Registrable Notes at any time prior to the close of business, New York City
time, on the last business day on which the Notes Exchange Offer shall
remain open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Notes delivered for
exchange, and a statement that such Holder is withdrawing, in whole or in
part, his election to have such Notes exchanged; and
(iv) otherwise comply in all respects with all applicable laws
relating to the Notes Exchange Offer.
As soon as practicable after the close of the Notes Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Notes Exchange Offer in accordance with
the terms of the Notes Exchange Offer Registration Statement and the letter
of transmittal which is an exhibit thereto;
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(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the Company;
and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in amount to the
Registrable Notes of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date on
which interest was paid on the Registrable Notes surrendered in exchange
therefor or, if no interest has been paid on the Registrable Notes, from the
Original Issue Date. The Notes Exchange Offer shall not be subject to any
conditions, other than that the Notes Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff of the SEC. Each Holder of Registrable Notes
(other than Participating Broker-Dealers) who wishes to exchange such
Registrable Notes for Exchange Notes in the Notes Exchange Offer shall have
represented that (i) any Exchange Notes to be received by it were acquired in
the ordinary course of business,(ii) at the time of the commencement of the
Notes Exchange Offer it has no arrangement with any Person to participate in
the distribution (within the meaning of the 0000 Xxx) of the Exchange
Notes,(iii) it is not an affiliate (as defined in Rule 405 under the 0000
Xxx) of the Company, or if it is an affiliate it will comply with the
registration and prospectus delivery requirements of the 1933 Act to the
extent applicable and (iv) it is not acting on behalf of any Person who could
not make the representations in clauses (i) through (iii) above. The Company
shall inform the Initial Purchasers of the names and addresses of the Holders
to whom the Notes Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Notes in the Notes Exchange Offer.
(b) SHELF REGISTRATION. (i) If, because of any change in law or
applicable interpretations thereof by the Staff of the SEC, the Company is not
permitted to effect the Notes Exchange Offer as contemplated by section 2(a)
hereof, or (ii) if for any other reason the Notes Exchange Offer cannot be
consummated within 210 days following the Original Issue Date, or (iii)if any
Holder (other than an Initial Purchaser) is not eligible to participate in the
Notes Exchange Offer or (iv) upon the request of any Initial Purchaser (with
respect to any Registrable Notes which it acquired directly from the Company)
following the consummation of the Notes Exchange Offer, if any such Initial
Purchaser shall hold Registrable Notes which it acquired directly from the
Company and if such Initial Purchaser is not permitted, in the reasonable
opinion of counsel to such Initial Purchaser, pursuant to applicable law or
applicable interpretation of the Staff of the SEC to participate in the Notes
Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, and in any event within 90 days after
the date on which such filing obligation arises, file with the SEC a Notes
Shelf Registration Statement relating to the offer and sale of the then
outstanding Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by the Majority Holders
of such Registrable Notes and set forth in such Notes Shelf Registration
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Statement, and use its best efforts to cause such Notes Shelf Registration
Statement to be declared effective by the SEC on or prior to the 150th
calendar day following the Original Issue Date (or promptly in the event of
a request by any Initial Purchaser pursuant to clause (iv) above). In the
event that the Company is required to file a Notes Shelf Registration
Statement upon the request of any Holder (other than an Initial Purchaser)
not eligible to participate in the Notes Exchange Offer pursuant to clause
(iii) above or upon the request of any Initial Purchaser pursuant to clause
(iv) above, the Company shall file and have declared effective by the SEC
both a Notes Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Notes and a Notes Shelf Registration
Statement (which may be a combined Registration Statement with the Notes
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Notes held by such Holder or such Initial Purchaser after
completion of the Notes Exchange Offer; PROVIDED, that with respect to
Exchange Notes received by an Initial Purchaser in exchange for any portion
of an unsold allotment of Notes, the Company may, if permitted by current
interpretations of the staff of the SEC, file a post-effective amendment to
the Notes Exchange Offer Registration Statement containing the information
required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its obligations under Section 2(b) with respect thereto,
and any such Notes Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and be governed by (for so long as such
interpretation of the SEC shall continue to be effective) the provisions
herein applicable to, a Notes Shelf Registration Statement.
(B) use its best efforts to keep the Notes Shelf Registration
Statement continuously effective in order to permit the Prospectus forming
a part thereof to be usable by Holders for a period of two years from the
date the Notes Shelf Registration Statement is declared effective by the
SEC (or one year from the date the Notes Shelf Registration Statement is
declared effective if such Notes Shelf Registration Statement is filed upon
the request of any Initial Purchaser pursuant to clause (iv) above) or such
shorter period which will terminate when (i) all of the Registrable Notes
covered by the Notes Shelf Registration Statement have been sold pursuant
to the Notes Shelf Registration Statement, (ii) the date on which all of
the Registrable Notes become eligible for resale pursuant to Rule 144 under
the 1933 Act without volume restrictions, or (iii) the date on which there
ceases to be any outstanding Registrable Notes; and
(C) notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Notes Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplement
thereto complies in all material respects with the 1933 Act and the rules
and regulations thereunder,(ii) any Notes Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, 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
not misleading and (iii) any Prospectus forming a part of any Notes Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to
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make the statements, in light of the circumstances under which they were
made, not misleading.
The Company further agrees, if necessary, to supplement or amend the
Notes Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration to become usable as
soon as practicable thereafter and to furnish to the Holders of Registrable
Notes copies of any such supplement or amendment promptly after its being used
or filed with the SEC.
(c) EXPENSES. The Company shall be liable for and pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and 2(b). Each Holder shall pay all expenses of its counsel other than as
set forth in the preceding sentence, underwriting discounts and commissions
(prior to the reduction thereof with respect to selling concessions, if any) and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Notes pursuant to the Notes Shelf Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT.
(i) The Company will be deemed not to have used its best efforts to
cause the Notes Exchange Offer Registration Statement or the Notes Shelf
Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Company voluntarily takes any
action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Notes covered thereby
not being able to exchange or offer and sell such Registrable Notes during
that period unless (A) such action is required by applicable law or (B)
such action is taken by the Company in good faith and for valid business
reasons (but not including avoidance of the Company's obligations
hereunder), including a material corporate transaction, so long as the
Company promptly complies with the requirements of Section 3(k) hereof,
if applicable.
(ii) A Notes Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Notes Shelf Registration Statement pursuant to Section
2(b) hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; PROVIDED, HOWEVER, that if, after it has
been declared effective, the offering of Registrable Notes pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Notes pursuant to such Registration Statement may legally
resume.
(e) INCREASE IN INTEREST RATE. In the event that (i) the Notes
Exchange Offer Registration Statement is not filed with the SEC on or prior to
the 90th day following the Original
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Issue Date,(ii) the Notes Exchange Offer Registration Statement (or, if
applicable, the Notes Shelf Registration Statement) has not become effective
within 120 days following the Original Issue Date, (iii) the expiration of
the Notes Exchange Offer has not occurred within 45 days after the effective
date of the Notes 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 (except as specifically
permitted herein) without being succeeded immediately by an additional
Registration Statement filed and declared effective (any such event referred
to in clauses (i) through (iv) above, a "Registration Default;" PROVIDED that
no more than one Registration Default shall be deemed in effect at any one
time), the interest rate borne by the Notes shall be increased by one-half of
one percent (0.5%) per annum for the period from the occurrence of the
Registration Default until such time as no Registration Default is in effect,
PROVIDED, that if a different event specified in clause (i), (ii), (iii) or
(iv) above occurs the interest rate will again be increased as pursuant to
the foregoing provisions . Such additional interest (the "Special Interest")
shall be payable in cash semiannually in arrears on each May 15 and November
15. For each 90-day period that the Registration Default continues, the per
annum rate of such Special Interest shall increase by an additional one-half
of one percent (0.5%), PROVIDED that such rate shall in no event exceed two
percent (2.0%) per annum in the aggregate. If the Company issues a notice
that the Notes Shelf Registration Statement is unusable pending the
announcement of a material corporate transaction or otherwise pursuant to
Section 3(k) hereof, or such a notice is required under applicable securities
laws to be issued by the Company, and the aggregate number of days in any
consecutive twelve-month period for which all such notices are issued or
required to be issued exceeds 30 days in the aggregate, then the interest
rate borne by the Notes will be increased by one-half of one percent per
annum following the date that such Notes Shelf Registration Statement ceases
to be usable beyond the 30-day period permitted above, which rate shall be
increased by an additional one-half of one percent per annum for each
additional 90-day period that such Notes Shelf Registration Statement
continues to be unusable; PROVIDED that the aggregate increase in such annual
interest rate may in no event exceed two percent (2.0%). Upon the Company
declaring that the Notes Shelf Registration Statement is usable after the
interest rate has been increased pursuant to the preceding sentence, the
interest rate borne by the Notes will be reduced to the original interest
rate if the Company is otherwise in compliance with this paragraph; PROVIDED,
HOWEVER, that if after any such reduction in interest rate the Notes Shelf
Registration Statement again ceases to be usable beyond the period permitted
above, the interest rate will again be increased and thereafter reduced
pursuant to the foregoing provisions.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its respective obligations under Sections
2(a) and 2(b) 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 obligations
under Sections 2(a) and 2(b) hereof.
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3. REGISTRATION PROCEDURES. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the 1933
Act, which form (i) shall be selected by the Company, (ii) shall, in the case of
a Shelf Registration, be available for the sale of the Registrable Notes by the
selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith,
and use its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to (i) the Notes Exchange Offer Registration Statement as may be
necessary under applicable law to keep such Notes Exchange Offer Registration
Statement effective for the period required to comply with Section 2(a) and
(ii) the Notes Shelf Registration Statement as may be necessary under applicable
law to keep such Notes Shelf Registration Statement effective for the period
required pursuant to Section 2(b) hereof; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and comply with the provisions of
the 1933 Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least ten days prior to filing, that a Notes Registration
Statement (or amendment thereto) with respect to the Registrable Notes is being
filed and advising such Holders that the distribution of Registrable Notes will
be made in accordance with the method elected by the Majority Holders; and (ii)
furnish to each Holder of Registrable Notes, to counsel for the Initial
Purchasers, to counsel for the Holders and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder, counsel
or underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Notes; and (iii) subject to the last paragraph of
Section 3, hereby consent to the use of the Prospectus, including each
preliminary Prospectus, or any amendment or supplement thereto, by each of the
selling Holders of Registrable Notes in connection with the offering and sale of
the Registrable Notes covered by the Prospectus, or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the Registrable Notes
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Holder of Registrable Notes covered by a Registration Statement and each
underwriter of an underwritten offering of
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Registrable Notes shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with
the Holders in connection with any filings required to be made with the NASD,
to keep each such registration or qualification effective during the period
such Registration Statement is required to be effective and to do any and all
other acts and things that may be reasonably necessary or advisable to enable
such Holders to consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holders; PROVIDED, HOWEVER, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction if it
is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for the Initial Purchasers promptly and, if
requested by such Holder or counsel, confirm such advice in writing promptly
(i) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of
any request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Notes covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of
the Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening of any
event or the discovery of any facts during the period a Notes Shelf
Registration Statement is effective which makes any statement made in such
Notes Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such Notes
Shelf Registration Statement or Prospectus in order to make the statements
therein not misleading and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Notes Exchange Offer, (i) include in the
Notes Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Notes Exchange Offer
Registration Statement by broker-dealers who have exchanged their Registrable
Notes for Exchange Notes for the resale of such Exchange Notes, (ii) furnish
to each broker-dealer who desires to participate in the Notes Exchange Offer,
without charge, as many copies of each Prospectus included in the Notes
Exchange Offer Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Notes Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable Notes acquired for its
own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange Notes
for Registrable
11
Notes pursuant to the Notes Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Notes,(iv) subject to the last
paragraph of Section 3, hereby consent to the use of the Prospectus forming
part of the Notes Exchange Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer in connection with the sale or
transfer of the Exchange Notes covered by the Prospectus or any amendment or
supplement thereto in accordance with the 1933 Act, and (v) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Notes Exchange Offer (x) the following
provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned
is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Registrable Notes, it represents that the
Registrable Notes to be exchanged for Exchange Notes were
acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Notes pursuant to the Notes
Exchange Offer; PROVIDED, HOWEVER, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to
admit that it is an "underwriter" within the meaning of the 1933
Act";
and (y) a statement to the effect that by making the acknowledgment described in
subclause (x) and by delivering a Prospectus in connection with the exchange of
Registrable Notes, a broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer participates
in the Notes Exchange Offer, the Company shall use its best efforts to
cause to be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be TD Securities
(USA) Inc., unless it elects not to act as such representative) only
one, if any, "cold comfort" letter with respect to the Prospectus in
the form existing on the last date for which exchanges are accepted
pursuant to the Notes Exchange Offer and with respect to each
subsequent amendment or supplement, if any, effected during the period
specified in clause (C) below;
(C) to the extent any Participating Broker-Dealer participates
in the Notes Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Notes Exchange Offer Registration
Statement for a period of 90 days following the closing of the Notes
Exchange Offer; and
12
(D) the Company shall not be required to amend or supplement the
Prospectus contained in the Notes Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b), or take
any other action as a result of this Section 3(f), for a period
exceeding 120 days after the last date for which exchanges are
accepted pursuant to the Notes Exchange Offer (as such period may be
extended by the Company) and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by this
Section 3;
(g) (A) in the case of a Notes Exchange Offer, furnish counsel for
the Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Notes copies of any request by the SEC or
any state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as practicable
and provide immediate notice to each Holder of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends; and cause such Registrable Notes to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders or the underwriters, if any, may reasonably
request at least two business days prior to the closing of any sale of
Registrable Notes;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section 3(e)(vi)
hereof, use best efforts to prepare a supplement or post-effective amendment to
a Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such Prospectus will not
contain at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder hereby agrees
to suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any
13
omitted material fact, the Company agrees promptly to notify each Holder of
such determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Notes, or Registrable
Notes, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the Exchange
Notes or the Registrable Notes, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes, or Registrable Notes, as the case may be,
(ii) cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions (including those reasonably requested by the Majority Holders) in order
to expedite or facilitate the disposition of such Registrable Notes and in such
connection whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Notes and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Registrable Notes being
sold) addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, and use best efforts to have such letters addressed
to the selling Holders of Registrable Notes, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with similar
underwritten offerings;
14
(iv) enter into a securities sales agreement with all of the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be in
form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and all other parties to
be indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings.
The above actions shall be done at (i) the effectiveness of such Notes Shelf
Registration Statement (and, if appropriate, each post-effective amendment
thereto) and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Notes of such underwritten offering at least 30 days prior to the
filing of a prospectus supplement for such underwritten offering. Such notice
shall (x) offer each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 10 days following
the date of such notice, by which such Holder must inform the Company of its
intent to participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes and any
underwriters participating in any disposition pursuant to a Notes Shelf
Registration Statement and any counsel or accountant retained by such Holders or
underwriters, during business hours, all financial and other records, pertinent
corporate documents and properties of the Company reasonably requested upon
reasonable notice by any such Persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with such Notes Shelf Registration
Statement; PROVIDED, HOWEVER, that such Persons shall first agree in writing
with the Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time of delivery of
such information shall be kept confidential by such Persons, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities,(ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of such Notes
Shelf Registration Statement or the use of any Prospectus), (iii)such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard such information by such Person or (iv)
such information becomes available to such Person from a source other than the
Company and its subsidiaries and such source is not bound by a confidentiality
agreement;
15
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Notes Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to a Notes Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Purchasers, and make such changes in any such document
prior to the filing thereof as any of the Initial Purchasers or their counsel
may reasonably request; (ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Notes Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Notes Shelf Registration Statement
or amendment or supplement to such Prospectus, provide copies of such document
to the Holders of Registrable Notes, to the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Notes, if any, and make such changes in any such
document prior to the filing thereof as the Holders of Registrable Notes, the
Initial Purchasers on behalf of such Holders, their counsel and any underwriter
may reasonably request; and (iii) cause the representatives of the Company to be
available for discussion of such document as shall be reasonably requested by
the Holders of Registrable Notes, the Initial Purchasers on behalf of such
Holders or any underwriter and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been advised
and furnished a copy or to which such Holders, the Initial Purchasers on behalf
of such Holders, their counsel or any underwriter shall reasonably object, each
of which actions in this clause (iii) by the Holders shall be coordinated by one
representative for all the Holders at reasonable times and in a reasonable
manner;
(q) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Notes to be listed on any securities exchange on which
similar debt securities issued by the Company are then listed if requested by
the Majority Holders or by the underwriter or underwriters of an underwritten
offering of Registrable Notes, if any;
(r) in the case of a Shelf Registration, unless the rating in effect
for the Notes applies to the Exchange Notes and the Notes to be sold pursuant to
a Shelf Registration, use its best efforts to cause the Registrable Notes to be
rated with the appropriate rating agencies, if so requested by the Majority
Holders or by the underwriter or underwriters of an underwritten offering of
Registrable Notes, if any, unless the Registrable Notes are already so rated;
(s) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Notes Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Notes to furnish to the Company such
information regarding such Holder and the
16
proposed distribution by such Holder of such Registrable Notes and make such
representations, in each case, as the Company may from time to time
reasonably request in writing.
In the case of a Notes Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes current at the time of receipt of
such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes pursuant to a Notes Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Section 3(e)(vi) hereof, the Company shall
be deemed to have used its best efforts to keep the Notes Shelf Registration
Statement effective during such period of suspension, PROVIDED, that the Company
shall use its best efforts to file and have declared effective (if an amendment)
as soon as practicable an amendment or supplement to the Notes Shelf
Registration Statement and shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
written notice from the Company that the use of the Prospectus may be resumed.
4. UNDERWRITTEN REGISTRATIONS. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless each Holder, including the Initial Purchaser and Participating
Broker-Dealers, each underwriter who participates in an offering of Registrable
Notes, their respective affiliates, and their respective directors, officers,
employees and agents, and each Person, if any, who controls any such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
17
(i) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendments or supplements thereto) pursuant to which
Exchange Notes or Registrable Notes were registered under the 1933 Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendments or supplements
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; PROVIDED that (subject to Section
5(c) below) any such settlement is effected with the consent of the
Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by an indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
PROVIDED, HOWEVER, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and (ii) the Company shall not be liable to any indemnified
party under this indemnity agreement with respect to the Registration Statement
or Prospectus to the extent that any such loss, claim, damage or liability of
such indemnified party results solely from an untrue statement of a material
fact contained in, or the omission of a material fact from, the Registration
Statement or Prospectus which untrue statement or omission was corrected in an
amended or supplemented Registration Statement or Prospectus, if the person
alleging such loss, claim, damage or liability was not sent or given, at or
prior to the written confirmation of such sale, a copy of the amended or
supplemented Registration Statement or Prospectus if the Company had previously
furnished copies thereof to such indemnified party and if delivery of a
prospectus is required by the 1933
18
Act and was not so made. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Initial Purchasers, each underwriter who participates in an offering of
Registrable Notes and the other selling Holders and each of their respective
directors and officers (including each officer of the Company who signed the
Registration Statement) and each Person, if any, who controls the Company, each
Initial Purchaser, any underwriter or any other selling Holder, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder, as the case may be,
expressly for use in the Registration Statement (or any amendment thereto), or
the Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that
no such Holder shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of Registrable Notes
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice in writing as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action;
PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel, in addition to any local counsel, for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim 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 any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying
19
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 5(a)(ii) hereof effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Initial Purchaser and the Holders, from
the offering of the Exchange Notes or Registrable Notes included in such
offering or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the Initial Purchasers, and the Holders, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company, the Initial Purchasers, and the Holders shall
be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Initial Purchasers or the Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Initial Purchasers and the Holders of the
Registrable Notes agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity, and the Holders were treated as
one entity, for such purpose) or by another method of allocation which does not
take account of the equitable considerations referred to above in this Section
5. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any 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 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 5,
each person, if any, who controls an Initial Purchaser or Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company and each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The parties hereto agree
that any underwriting discount or commission or reimbursement of fees paid to
any Initial Purchaser pursuant to the
20
Purchase Agreement shall not be deemed to be a benefit received by any
Initial Purchaser in connection with the offering of the Exchange Notes or
Registrable Notes in such offering.
6. MISCELLANEOUS. (a) RULE 144 AND RULE 144A. For so long as the
Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the reports required to be filed by
it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so required to file such
reports, it will upon the request of any Holder of Registrable Notes (i) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act,(ii) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933
Act and (iii) take such further action that is reasonable in the circumstances,
in each case, to the extent required from time to time to enable such Holder to
sell its Registrable Notes without registration under the 1933 Act within the
limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Notes, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered into nor
will the Company, on or after the date of this Agreement, enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. 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 other issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; PROVIDED, HOWEVER, that no amendment, modification, supplement or
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, facsimile transmission, or any courier guaranteeing
overnight delivery (i) if to a Holder (other than an Initial Purchaser), at
the most current address set forth on the records of the Securities Registrar
under the Indenture,(ii) if to an Initial Purchaser, at the most current
address given by such Initial Purchaser to the Company by means of a notice
given in accordance with the provisions of this Section 6(d), which address
initially is the address set forth in the Purchase Agreement; and (iii) if to
the Company, initially at the Company's address set forth in the Purchase
Agreement
21
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if faxed; 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.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees 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 Registrable Notes in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such 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.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, 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 deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(g) COUNTERPARTS. This Agreement may be executed in one or more
counterparts and in separate counterparts and, when this Agreement has been
executed by each party in multiple or separate counterparts, all such
counterparts taken together shall constitute one and the same agreement.
(h) EFFECT OF HEADINGS. The Section and other headings herein are
for convenience only and shall not affect the construction hereof.
(i) GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO ITS CONFLICTS OF LAW PROVISIONS). SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
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(j) 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RURAL CELLULAR CORPORATION
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
TD SECURITIES (USA) INC.
By:
--------------------------------
Authorized Signatory
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:
--------------------------------
Authorized Signatory
BANCBOSTON SECURITIES INC.
By:
--------------------------------
Authorized Signatory
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